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, four DOCS employees, violated his constitutional rights under the Eighth and Fourteenth Amendments. Am. Compl. (Docket No. 23). Presently pending is defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56. Dkt Nos. 41, 42. Burgess opposes the motion. Dkt. No. 47. For the following reasons, it is recommended that defendants' motion be granted.
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. The only remaining contentions are Burgess' Eighth Amendment claim regarding his right to medical treatment related to his back and neck and his Fourteenth Amendment claim alleging that defendant Boyea failed to determine a grievance filed by Burgess.*fn2 Dkt. No. 31.
Burgess underwent a fusion surgery on his neck in 2002. Dkt. No. 23 at 80. Burgess was incarcerated at Upstate from June 29, 2006 until September 24, 2007. Tichenor Decl. (Dkt. No. 41-4) ¶ 6. During this time, Burgess was under the care of defendant Tichenor, a Physician's Assistant ("PA") who "diagnosed, treated and wrote prescriptions under the supervision of a physician . . . [and] assess[ed] the physical and psychological status of patients through interviews, health history, physical examination and diagnostic tests." Tichenor Decl. ¶¶ 1, 3. When Burgess arrived at Upstate in June 2006, he was undergoing a number of treatments for multiple conditions including diabetes and injuries to both his hands and his knee, though he did not express any complaints of neck pain. Id. ¶¶ 7, 9. Burgess also had made no complaints of neck pain during his previous incarceration at Franklin. Id. ¶ 8.
On July 26, 2006, Burgess complained of pain in his neck and feet. Dkt. No. 41-6, Ex. A, p. 165.*fn3 Tichenor issued Burgess a three-month prescription for Tylenol, to be taken twice a day. Id.; see also Tichenor Decl. ¶ 12. Tichenor prescribed Tylenol, instead of the Naprosyn which Burgess had previously been receiving at Franklin, because "given [Burgess'] status as a diabetic and the potential for it causing renal failure, it was not a proper pain reliever for . . . Burgess." Id. ¶ 13. "The Tylenol prescription was renewed as soon as it expired and from reviewing the records it appears that [Burgess] was given a pain reliever prescription the whole time he was at Upstate." Id. ¶ 14; see also Dkt. No. 41-6, Ex. A, pp. 26-28, 32, 83, 87, 90, 139, 143-44, 146, 148, 151, 154, 162, 170-72, 361-65, 370, 372, 374, 379, 382, 384-86, 389, 393-94, 401, 415, 422. Burgess was also being treated for neuropathy as a result of his diabetes, though the prescription that he was given, Neurotin, also acted as a pain reliever. Tichenor Decl. ¶ 15. This prescription was also provided for the duration of Burgess' incarceration at Upstate. Dkt. No. 41-6, Ex. A, pp. 34, 36, 41-44, 46, 50-51. Tichenor also prescribed another medication for neurogenic pain, but after taking it for a few days Burgess decided he did not like its side effects, so the medication was discontinued. Tichenor Decl. ¶¶ 15-16; Dkt. No. 41-6, Ex. A, pp. 63, 126.
Burgess next began complaining of back and neck pain in January 2007. Tichenor Decl. ¶ 18; Dkt. No. 41-6, Ex. A, p. 363. Burgess was given Extra Strength Tylenol, scheduled for examination, and, despite his complaints of pain, stood in his cell in no obvious or apparent distress. Tichenor Decl. ¶ 18; Dkt. No. 41-6, Ex. A, p. 363. On February 20, 2007, Burgess was seen by a nurse and sought stronger pain medication for his back, feet, hands, and knee. Tichenor Decl. ¶ 21; Dkt. No. 41-6, Ex. A, p. 370. Burgess was bearing his full weight, in no visible distress, and moving all his extremities without any difficulty. Tichenor Decl. ¶ 21; Dkt. No. 41-6, Ex. A, p. 370. When Burgess was offered pain medication, he became upset, refused to discuss the situation further, and walked away from his cell door. Tichenor Decl. ¶ 21; Dkt. No. 41-6, Ex. A, p. 370. A few days later Burgess wrote Tichenor seeking additional pain medication and an x-ray for his neck. Tichenor Decl. ¶ 22; Dkt. No. 41-6, Ex. A, p. 372. Tichenor ordered the x-ray and continued the Tylenol prescription as Naprosyn and Ibuprofen were contraindicated for Burgess based on his diabetes. Tichenor Decl. ¶ 22; Dkt. No. 41-6, Ex. A, p. 372.
The first week in March, Burgess received an x-ray performed on his cervical spine which showed a "fracture of one of the top most screws in the C3 vertebral body [as] compared to the 2003 examination . . . [additionally there were a]dvanced degenerative change[s] . . . seen from C3-C4." Dkt. No. 41-6, Ex. A, p. 358; see also Tichenor Decl. ¶
23. On March 13, 2007, Tichenor responded to Burgess' claims that the screws used in the operation were fractured, seeking information as to the details surrounding the surgery. Tichenor Decl. ¶ 24; Dkt. No. 41-6, Ex. A, p. 355; Am. Compl. ¶ 26; Dkt. No. 23 at 79.
Within a week, they determined that Burgess' surgery occurred in August 2002, the x-rays showed the possible fracture of two screws, and a neurosurgery consultation was required. Tichenor Decl. ¶ 25; Dkt. No. 41-6, Ex. A, p. 309. The neurosurgery consultation was approved on April 5, 2007. Tichenor Decl. ¶ 26.*fn4
On March 27, 2007, Burgess complained of pain in his neck, but medical records indicate that his range of motion was good and there was no swelling noted. Dkt. No. 41-6, Ex. A, p. 380. Burgess was given Tylenol and a warm compress to place on his neck. Id. On March 29, 2007, a nurse visited Burgess to advise that taking too much Tylenol was harmful to his health, as Burgess was running out of his prescription medication and requesting refills prior to the appropriate date. Id., pp. 90, 380; see also Tichenor Decl. ¶ 17 (explaining that Burgess "was not always compliant with his treatment . . . ."). On April 9 and 30, 2007, Burgess was informed that his neurosurgery consultation was pending scheduling by the Central Office Medical Unit. Dkt. No. 41-6, Ex. A, p. 95, 378, 383; Dkt. No. 23 at 83.
On May 14, 2007, a DOCS supervisor advised Burgess that he had relayed Burgess' complaints of pain and leaned that Burgess was scheduled to meet with a neurosurgeon concerning the pain in relation to the surgery. Dkt. No. 23 at 38, 77. Additionally, the letter informed Burgess that such scheduling was done by CORC and should be forthcoming soon. Id. On May 31, 2007, a memorandum was sent from an Upstate corrections official to an official at the Coxsackie Regional Medical Unit ("RMU") explaining that Burgess was scheduled to report to Coxsackie on June 11th for a June 14th neurosurgery consultation and also provided the RMU staff with a list of medications Burgess would require upon his arrival and temporary stay at the RMU. Dkt. No. 41-6, Ex. A, p. 97. The date of the consultation was apparently changed, and a similar memorandum was again sent on June 15th, indicating that Burgess would arrive at the RMU on July 11th for a neurosurgery consultation on the following day. Id., p. 101. The memorandum again included a list of medications Burgess would require, including his pain medication. Id.
On July 9, 2007, medical records indicate that Burgess refused to go on the neurology consultation at the RMU because he was not provided with enough self-carry medication to sustain him through his absence from Upstate. Dkt. No. 41-6, Ex. A, p. 403; see also Id., p. 109; Tichenor Decl. ¶ 29. Burgess was informed that the receiving facility, the RMU, would be apprised of the medication that he required upon his arrival, but Burgess still refused to go. Dkt. No. 41-6, Ex. A, pp. 109, 403; Tichenor Decl. ¶ 29. On June 11, 2007, Burgess asserted in a grievance appeal that his appointment with a neurologist was cancelled after he suffered through a seven-hour bus ride without pain or diabetes medication. Dkt. No. 23 at 91.
On July 24, 2007, Tichenor received a letter from Burgess accusing her of stopping Burgess' pain medication and causing him increased suffering. Tichenor Decl. ¶ 30; Dkt. No. 41-6, Ex. A, p. 400. Tichenor responded by referring Burgess to his medical records which indicated that a prescription for Tylenol renewal was written on July 13. Tichenor Decl. ¶ 30; Dkt. No. 41-6, Ex. A, pp. 110, 400, 402. A few days later, Burgess again sought different pain medication, stating that he did not want to speak to a PA but only to a physician, and again appearing in no acute distress since he was successfully moving his head, neck and upper extremities without any difficulty or pain. Dkt. No. 41-6, Ex. A, p. 413. Burgess was informed that he was required to discuss his treatment with a PA and was offered pain medication. Id. Burgess responded that he was being denied medical care and then walked away from his cell door, refusing the pain medication which had previously been offered. Id.
Subsequently, Burgess continued to receive treatment for chronic pain and the fractured screws in his neck. On January 28, 2008, CT scan results showed a disruption of a screw and spinal stenosis in three vertebrae. Dkt No. 23 at 81; Dkt. No. 41-6, Ex. A, p. 334. Burgess continued to complain of pain despite the multiple prescriptions and was advised to see Dr. DiRisio, who had performed the original surgery. Dkt No. 23 at 81; Dkt. No. 41-6, Ex. A, p. 334. On April 10, 2008, Burgess returned for another consultation for his persistent neck pain. Dkt No. 23 at 81; Dkt. No. 41-6, Ex. A, p. 334. Burgess was still not responding to the pain medication and no neurological findings were noted. Dkt No. 23 at 81; Dkt. No. 41-6, Ex. A, p. 334. 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. Dkt No. 23 at 81; Dkt. No. 41-6, Ex. A, p. 334; Tichenor Decl. ¶ 36. Additional radiology tests were suggested. Dkt No. 23 at 81; Dkt. No. 41-6, Ex. A, p. 334.
On August 1, 2007, Burgess again consulted with Tichenor, stating that he still wished to attend a neurology consultation but he was worried about the amount of self-carry medication he received. Tichenor Decl. ¶ 31; Dkt. No. 23 at 80; Dkt. No. 41-6, Ex. A, p 320, 333. Tichenor submitted another consultation request on Burgess' behalf. Tichenor Decl. ¶ 32; Dkt. No. 23 at 80; Dkt. No. 41-6, Ex. A, p 312, 320, 333. Another memorandum was sent to the RMU identifying the medication which Burgess would require during his consultation stay and Burgess was seen for the consultation on September 13, 2007. Tichenor Decl. ¶¶ 33-34; Dkt. No. 41-6, Ex. A, p. 115; Dkt. No. 23 at 80. The physician increased Burgess' Neurotin prescription and advised him to reschedule with his surgeon if the additional medication did not help. Tichenor Decl. ¶ 34; Dkt. No. 23 at 80. Burgess left Upstate on ...