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Alvarez v. Goord

May 17, 2010


The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge


Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #16.

As a threshold matter, the Court notes that in the caption of his complaint, plaintiff named the following four individuals as defendants: Commissioner Glenn S. Goord; Dr. Canfield Wesley; "William J. Hupkins"; and, Lester N. Wright.*fn1 According to the docket sheet maintained by the Western District of New York Clerk of Court, defendant Dr. Canfield Wesley was never served with a copy of the Summons and Complaint. Dkt. #7 (Summons returned unexecuted). Currently before the Court is the defendants' motion for summary judgment. Dkt. #26. For the following reasons, defendants' motion for summary judgment is granted.


Plaintiff, proceeding pro se, commenced this action on or about November 22, 2005, against Glenn S. Goord, New York State Department of Correctional Services ("DOCS") Commissioner; Canfield Wesley, Doctor; William J. Hopkins (incorrectly named in the complaint Hupkins), Deputy Superintendent for Administrative Services; and, Lester N. Wright M.D., Deputy Commissioner Chief Medical Officer, each in their individual and official capacities. Dkt. #1. Plaintiff's complaint alleges that defendants Goord, Hopkins and Wright were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment to the United States Constitution. At all times relevant to the allegations in plaintiff's complaint, plaintiff was incarcerated at either the Downstate Correctional Facility ("Downstate") or the Elmira Correctional Facility ("Elmira"). In addition to plaintiff's request for compensatory and punitive damages, plaintiff's complaint also seeks a declaratory judgment, as well as injunctive relief in the form of receipt of the proper eye surgery for his right eye.*fn2 Id. As noted above, although named as a defendant, Dr. Canfield Wesley was never served with a copy of the Summons and Complaint and has never appeared in this action. Dkt. #7.

Specifically, against defendant Goord, plaintiff alleges that on October 28, 2004, defendant Goord transferred plaintiff from Downstate to Elmira so that plaintiff could not receive eye surgery. Thus, plaintiff alleges that defendant Goord interfered with plaintiff's right to receive medical treatment, which in turn resulted in further physical and mental injuries to plaintiff. As against defendant Hopkins, plaintiff alleges that from October 28, 2004 to November 14, 2005, defendant Hopkins, the Deputy Superintendent for Administration at Elmira, refused to send plaintiff to the Albany Medical Center to have an eye care specialist perform surgery to correct plaintiff's right eye. As with defendant Goord, plaintiff also alleges that defendant Hopkins interfered with plaintiff's right to receive medical treatment, which in turn resulted in further physical and mental injuries to plaintiff. Finally, as against defendant Wright, plaintiff alleges that Dr. Wright, the Deputy Commissioner and Chief Medical Officer for DOCS, refused to intervene concerning plaintiff's transfer from Downstate to Elmira and further, refused to overturn the medical decisions made by DOCS physicians. Plaintiff also alleges that Dr. Wright interfered with plaintiff's right to receive medical treatment, which in turn resulted in further physical and mental injuries to plaintiff.

Following discovery, defendants Goord, Hopkins and Wright filed the instant motion for summary judgment on December 12, 2007. Dkt. #26. Thereafter, by letter dated March 3, 2009, plaintiff stated,

Your Honor, after carefully researching all aspect's [sic] in this case. At this time I will withdraw my petition in this matter due to the fact that I did not write the Superintendent of Elmira Correctional Facility or Central Office Review Committee [sic] to inform them of my situation concerning my grievance in not doing so I fail [sic] to exhaust my administrative remedies. I thank you for your time in this matter.

Dkt. #39. Based on the foregoing, on May 8, 2008, this Court issued a Text Order stating "[i]n accordance with plaintiff's letter request dated March 3, 2008, plaintiff's complaint is withdrawn without prejudice pursuant to Fed. R. Civ. P. 41(a)(2). The Clerk of the Court is directed to take the necessary steps to close this file." Dkt. #40. Later the same day, consistent with this Court's Text Order, the Clerk of Court closed the file. On or about January 29, 2009, this Court received a letter from plaintiff wherein he stated,

On March 3, 2008 I wrote the Court's [sic] asking the Courts [sic] to allow me to withdraw my pertition [sic] in this matter. On 5/8/08 Hon. H. Kenneth Schroeder, Jr allow the complaint to be withdraw [sic] without prejudice pursuant to Fed.R.Civ.P. 41(a)(2). After carefully researching and looking in to this matter, I ask the Court's [sic] to reinstate this complaint. I thank this Court for its time and effort in this matter.

Dkt. #41. Shortly thereafter, the Court acknowledged receipt of plaintiff's letter and instructed plaintiff that his letter request to reinstate the complaint was insufficient and did not constitute a proper motion seeking reinstatement of the complaint. Dkt. #42. Thus, the Court gave plaintiff until March 9, 2009 to file a motion, together with a supporting affidavit and memorandum of law setting forth the factual and legal basis for the relief sought. Id. Plaintiff filed his motion seeking reinstatement of the complaint on March 3, 2009. Dkt. ##43 and 44. By Decision and Order filed March 12, 2009, this Court granted plaintiff's motion to reinstate the complaint and set a briefing schedule for the defendants' pending motion for summary judgment. Dkt. #45. Plaintiff filed his opposition to the instant motion for summary judgment on April 14, 2009 (Dkt. #46) and counsel for defendants filed a reply declaration on June 26, 2009 (Dkt. #49).


On August 19, 2004, plaintiff was received at the Downstate Reception Center, a temporary placement where he was given an entrance screening exam. Dkt. #27, ¶ 1. As part of the entrance screening exam, plaintiff's vision was tested and it was discovered that plaintiff had a refractory error and 20/200 vision in his right eye. Id. On September 20, 2004, plaintiff was "evaluated for an eye evaluation at the Downstate Eye Clinic." Id. at ¶ 2. Thereafter, on October 4, 2004, plaintiff was referred to an eye specialist at Downstate for his refractory error. Id. On October 20, 2004, plaintiff had an ophthalmology consultation at Downstate and following his examination, plaintiff was diagnosed with having a dislocation of his intraocular lens ("IOL"). Id. at ¶ 3. While at Downstate, a treatment plan was developed to remove the dislocated IOL, to remove the capsular scar tissue and implant a new IOL. Id.

On October 28, 2004, before any eye surgery could take place, plaintiff was transferred from the Downstate Reception Center to his permanent placement within DOCS at Elmira. Id. at ¶ 4. Following his transfer to Elmira, Drs. Yin and Canfield, both physicians at Elmira, reviewed plaintiff's medical records and referred him to a specialist at the Harrison Center, the medical facility to which inmates at Elmira with eye conditions are referred. Id. at ¶ 5. Plaintiff was seen on November 30, 2004 by Dr. William Cosman, a State University of New York ophthalmologist at the Harrison Center. Id. at ¶ 6. During that examination, plaintiff complained of blurred vision in his right eye. Id. Following his examination, Dr. Cosman concurred with the diagnosis of a dislocation of plaintiff's IOL. Id. However, Dr. Cosman recommended that a corrective contact lens evaluation be conducted, and scheduled a follow-up with plaintiff in six to eight months and instructed plaintiff to contact his office if he experienced any problems. Id. According to Dr. John Alves, the DOCS Medical Director, "[w]hile Dr. Cosman's plan of treatment differed from the plan of treatment recommended by the Ophthalmologist Plaintiff saw on October 24, 2004, at Downstate, it is my understanding that Dr. Cosman's plan of treatment, i.e., providing a patient with corrective contact lenses, is a common and medically appropriate method of treating refractive errors, as the lenses provide the patient with improved vision, minimize pain and are less invasive than corrective surgery." Dkt. #29, ¶ 9. Moreover, Dr. Alves concluded that by recommending corrective contact lenses, Dr. Cosman avoided potential complications from eye surgery. Id.

The DOCS physicians followed Dr. Cosman's recommendations and on December 6, 2004, Dr. Yin referred plaintiff to an optometrist for a corrective contact lens evaluation. Dkt. #27, ¶ 7. On December 30, 2004, plaintiff was examined and fitted for contact lenses and those contact lenses were ordered and shipped to the optometry clinic at Walsh Regional Medical Unit, to be dispensed by Dr. Berger. Id. at ¶ 8. Plaintiff received the corrective contact lenses on February 14, 2005 with instructions to return to Dr. Berger if problems arose with the contact lenses, otherwise, plaintiff was to return to Dr. Green, an ophthalmologist at the Harrison Center, for a yearly examination. Id. at ¶ 9. With the contact lenses, plaintiff's vision improved significantly from 20/200 to 20/80. Id. Between February 14, 2005 (the date when plaintiff received the corrective contact lenses) and May 31, 2005, plaintiff was seen by the medical staff at Elmira fourteen times for medical conditions/concerns other than vision problems and at no time, did plaintiff complain about his vision. Id. at ¶ 10.

As a follow-up to his November 30, 2004 appointment with Dr. Cosman at the Harrison Center, plaintiff was again seen by Dr. Cosman on May 31, 2005 with respect to plaintiff's dislocated IOL in his right eye. Id. at ¶ 11. The follow-up appointment revealed that plaintiff's visual acuity in his right eye remained stable at 20/80. Id. However, plaintiff's medical records at the Harrison Center revealed that plaintiff was not tolerant of the corrective contact lenses and was unable to wear them. Id. By reason of his intolerance of the corrective contact lenses, the Harrison Center recommended a care plan, including a return visit for repositioning of his IOL in his right eye and a capsulatomy (an incision in the covering of the lens of the eye, usually performed during cataract surgery). Id. Therefore, DOCS scheduled plaintiff for a follow-up in six to eight months or for a preoperative evaluation for the repositioning of his IOL, whichever occurred first. Id.

On August 4, 2005, plaintiff had a preoperative evaluation at the Harrison Center performed by Dr. Andrew Robinson. Id. at ¶ 12. Plaintiff was provided with prescriptions and instructions to commence applying the eye drops on August 8, 2005, three days before surgery. Id. Plaintiff's surgery was scheduled for August 10, 2005 at the Madison Irving ambulatory surgery clinic (affiliated with the Harrison Center). Id. Although it is unclear from plaintiff's medical records, plaintiff's surgery, scheduled for August 10, 2005, was cancelled. Id. at ¶ 13. Defendants submit that because DOCS had been following its customary pre-operative care plan on August 8-9, 2005, plaintiff's surgery was cancelled by the Madison Irving ambulatory surgery clinic. Id. Therefore, in keeping with the follow-up care plan put into place on May 31, 2005 by DOCS, plaintiff was seen for a further follow-up at the Harrison Center on January 12, 2006 and surgery was again recommended. Id. at ¶ 14. Plaintiff was also seen by a DOCS physician on January 17, 2006 and surgery was scheduled for January 26, 2006. Id. at ¶15. The next day, January 18, 2006, plaintiff was seen by DOCS physician Dr. Yin and Dr. Yin "detected an abnormal electrocardiogram." Id. at ¶ 15. As a result, Dr. Yin indicated that plaintiff would need cardiac clearance before he could undergo eye surgery. Id. Due to the uncertainty of whether plaintiff would be able to be seen by a DOCS physician and receive cardiac clearance before January 26, 2006, plaintiff's eye surgery was placed on hold. Id. Plaintiff was seen by a cardiologist on January 23, 2006 and Dr. Patel concluded that plaintiff was "stable for cataract surgery." Id.

A further consultation at the Harrison Center was scheduled for February 9, 2006. Id. at ¶ 16. At that time, plaintiff was seen by Dr. Petrela and Dr. Petrela did not recommend that plaintiff receive immediate surgery. Rather, Dr. Petrela recommended that plaintiff be re-fitted for corrective contact lenses and Dr. Petrela scheduled plaintiff for a follow-up in three months. Id. Plaintiff was next seen at the Harrison Center on May 8, 2006 and Dr. Phung, an ophthalmologist, noted that there was no improvement following the re-fitting of the corrective contact lenses and Dr. Phung recommended corrective eye surgery and noted that the next visit would be a pre-operative visit. Id. at ¶ 17. Plaintiff was seen at the Harrison Center for his pre-operative visit on June 5, 2006 and his next scheduled visit would be for his postoperative examination. Id. Thereafter, plaintiff's surgery was scheduled for June 28, 2006 and on June 20, 2006, plaintiff completed his pre-operative medical testing and was cleared for surgery. Id. Plaintiff's ...

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