The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn1
Plaintiff pro se Edward Burgess ("Burgess"), formerly an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, six DOCS employees, violated his constitutional rights under the Eighth and Fourteenth Amendments. Am. Compl. (Docket No. 23). Presently pending is defendants' motion to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6). Docket No. 24. Burgess opposes the motion. Docket No. 28. For the following reasons, it is recommended that defendants' motion be granted in part and denied in part.
The facts are related herein in the light most favorable to Burgess as the non-moving party. See subsection II(A) infra. At all relevant times, Burgess was incarcerated at Franklin ("Franklin") and Upstate ("Upstate") Correctional Facilities. Am. Compl. ¶¶ 2, 8. Burgess asserts claims of multiple violations of his Eighth Amendment right to medical treatment related to (1) a broken finger, (2) an injured right hand, (3) back and neck pain, (4) diabetes, and (5) provision of pain medication. Burgess also asserts that his Fourteenth Amendment right to due process was violated when defendant Boyea failed to determine a grievance filed by Burgess.*fn2
On or about March 22, 2006, Burgess injured a finger on his left hand in a work-related accident at Franklin. Am. Compl. ¶ 2. He was not concerned about the finger until his hand began to swell. Id. Burgess went to the infirmary and had x-rays taken of his left hand. Id. Medical staff applied a bandage to his left hand on March 28, 2006. Docket No. 24 at 15. The finger was painful, swollen, and deformed. Docket No. 24 at 50. There was a fracture in the finger, but it was unclear whether it was an acute or chronic injury. Id. Another x-ray was recommended to determine the actual damage the finger sustained. Id.
On April 13, 2006, Burgess was examined by defendant Champagne and his splint was discontinued. Docket No. 24 at 15. On April 18, 2006, a comparison x-ray was taken but yielded similarly inconclusive results. Id. at 51; Am. Compl. ¶ 4. A CT scan was recommended. Docket No. 24 at 51; Am. Compl. ¶ 5. On May 2, 2006, defendant Cahill issued a wrist support and bandage for Burgess. Docket No. 24 at 15; Am. Compl. ¶ 6. On June 2, 2006, the CT scan results confirmed a fracture but it was unclear "whether there is [a] fibrous union or whether there is also instability of the fracture during motion." Docket No. 24 at 20. No cast was placed on the hand or finger "based on [the] type and extent of fracture involved." Id. at 15.
On June 29, 2006, Burgess was transferred to Upstate. Am. Compl. ¶ 8. On July 2, 2006, defendant Tichenor informed Burgess that his finger had healed but incorrectly. Id. ¶ 24.*fn3 On July 10, 2006, Burgess was evaluated for a wrist brace and reported decreased sensation in both feet, a decreased range of motion in his left hand, and slight swelling in his right hand. Docket No. 24 at 36. On July 27, 2006, radiology results indicated degenerative changes in Burgess' left hand and traces of a healed or healing fracture, but no visible fracture lines. Id. at 52. The following day, medical examination found swelling over the finger joint on the left hand, without tenderness to palpation but with clicking and limited range of motion. Id. at 45. Burgess was advised that the hand would need surgery to remove a bone splinter. Id. at 19, 43, 48.*fn4 Burgess stated that the orthopaedic specialist expressed dismay at defendants' delay in bringing Burgess to the specialist for treatment. Am. Compl. ¶ 13. Additionally, Burgess was told that Albany had denied the specialist permission to operate on Burgess' left hand at that time. Id. ¶ 15.
On September 19, 2006, Burgess sent a letter complaining about the medical treatment he was receiving. Docket No. 24 at 18, 42. DOCS Division of Health Services responded that Burgess was being treated often by the medical department, had received two x-rays and a CT to diagnose the fracture in his finger, and treatment for a broken finger consisted of a splint. Id. at 19, 43, 85. Burgess was also reminded that potential complications from the suspected infection in his right hand delayed surgery on the left hand. Id. Burgess was also reminded that his appointment with an orthopaedic surgeon needed to be rescheduled.
On December 6, 2006, Burgess was informed by an orthopaedic specialist that the physician would only evaluate his right hand and not his left because that was the purpose of the visit. Docket No. 24 at 53. Radiographs on December 12, 2006 indicated that Burgess' left finger had healed and the alignment was unchanged. Id. On December 22, 2006, Burgess again met with the orthopaedic specialist, and when discussing treatment, started immediately to be verbally aggressive with [him].
Immediately [the physician] told [Burgess] that [he] was there to try to help him but if he is no cooperating, [the physician] cannot help him. [Burgess] did not let [the physician] examine . . . his hand. [Burgess] left immediately . . . without any desire of offered treatment.
Docket No. 24 at 31; see also Docket No. 24 at 21, 32; Am. Compl. ¶¶ 11, 21. After Burgess' outburst, the orthopaedic specialist discharged him as a patient, offering to recommence treatment if desired by Burgess. Docket No. 24 at 31.
On March 2, 2007, Burgess reported to Alice Hyde Medical Center for consultation prior to surgery for a joint debridement on his left hand. Docket No. 24 at 27-28. Initial assessments of the injury indicated that the fracture had healed with a mechanical locking which prevented full range of motion for the finger and pain when attempting to move it. Id. at 27. Physical examination showed no rotational deformity or signs of infection. Id. at 28. Radiology results showed a prominent bony spur in the finger. Id. The ultimate goal of the surgery was to improve but not fully correct Burgess' range of motion and level of sensation.*fn5 Id. Surgery was scheduled for the summer of 2007. Id. at 29.*fn6 On July 20, 2007, Burgess saw another surgeon as his first orthopaedic specialist could no longer perform the scheduled surgery. Id. at 49. Surgery was still necessary and Burgess was explained the risks, benefits, and alternatives to the procedure. Id.
On August 6, 2007, Burgess underwent surgery on his left finger. Am. Compl. ¶ 29; see also Docket No. 24 at 104. The surgical site healed well and left Burgess with good flexion and grip. Id. at 104. Further surgery was not recommended as there was potential for increased pain and reduced function. Id. Burgess was treated with pain medication for his discomfort. Id. Burgess began attending physical therapy in September or October, 2007 to help his left finger regain its full range of motion. Am. Compl. ¶ 30.
Burgess underwent a fusion surgery on his neck in 2002. Docket No. 24 at 80. On March 13, 2007, the medical department responded to Burgess' claims that the screws used in the operation were fractured. Id. at 79; Am. Compl. ¶ 26. As there was no information in his medical chart as to who performed the surgery, when it was performed, or where it was performed, Burgess was instructed to contact the surgeon. Id. at 79. On April 9, 2007, Burgess was prescribed 1000 mg of Tylenol, twice a day, to alleviate his persistent neck pain. Id. at 74. On April 30, 2007, Burgess was informed that both neurological and orthopaedic consultations had been approved and were being scheduled. Id. at 83.
On May 14, 2007, a DOCS supervisor advised Burgess that he had relayed on Burgess' complaints of pain and leaned that there was a prior neck surgery and that Burgess was scheduled to meet with a neurosurgeon concerning the pain in relation to the surgery. Docket No. 24 at 38, 77. Additionally, the letter informed Burgess that such scheduling was done by CORC and should be forthcoming soon. Id. On June 11, 2007, Burgess' appointment with a neurologist was cancelled after he suffered through a seven-hour bus ride without pain or diabetes medication. Id. at 91. On August 1, 2007, radiology reports of Burgess' neck showed possible fractures of two screws in Burgess' vertebrae, the surgery was performed by D. DiRisio, and Burgess was scheduled to be transported for an appointment but refused because he had no medicine to take with him and he was afraid to travel for days without it. Id. at 80. Burgess requested that the appointment be rescheduled. Id. On September 13, 2007, Burgess attended a neurological consult where he was prescribed pain and neurological medication and a neck CT scan, and advised to reschedule with Dr. DiRisio if the medication failed to help. Id.
On January 28, 2008, the CT scan results showed a disruption of a screw and spinal stenosis in three vertebrae. Docket No. 24 at 81. Burgess continued to complain of pain despite the multiple prescriptions and was again advised to see Dr. DiRisio. Id.*fn7 On April 10, 2008, Burgess returned for another consultation for his persistent neck pain. Id. Treatment notes indicate that Burgess was still not responding to the medication and that there were no neurological findings noted. Id. Burgess was again instructed to return to Dr. DiRisio to see if screw removal was necessary, or if the pain was unrelated to the screw breakage. Id. Additional radiology tests were suggested. Id.
C. Diabetes and Pain Medication
On February 13, 2006, Burgess had a swollen foot, for which elevation and rest were recommended. Docket No. 24 at 34. The following day, Burgess was given refills for a prescription. Id. When Burgess was transferred to Upstate on June 29, 2006, he was prescribed medication for pain. Am. Compl. ¶ 22. However, upon arrival at Upstate, he was told that he could no longer take the medication. Id. As of July 2006, Burgess was taking another medication for his pain. Id. Burgess continued taking the medication for five months without relief. Id. On July 10, 2006, Dr. Tichenor informed Burgess that he had already lost most of the sensation in both feet. Am. Compl. ¶ 10.
On January 1, 2007, Burgess was re-prescribed his former medication. Am. Compl. ¶ 23. However, when he returned to Upstate, he was again refused the medication because he was "to[o] old." Id.*fn8 On July 9, 2007, it was noted that Burgess' complaints of leg and foot pains could worsen from complications from his diabetes. Docket No. 24 at 91. ...