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Miller v. Rao

United States District Court, Second Circuit

December 3, 2013

RONNIE L. MILLER, 08-B-2469, Plaintiff,
DR. JADOW RAO, Attica Correctional Facility Health Services Director, MS. KILLINGER, Attica Correctional Facility Nurse Administrator, and MR. JAMES CONWAY, Attica Correctional Facility Superintendent, Defendants.


H. KENNETH SCHROEDER, Jr., 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, including the entry of final judgment. Dkt. #39.

Plaintiff Ronnie Miller, an inmate in the care and custody of the New York State Department of Corrections and Community Service ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 seeking money damages for violation of his rights under the Eighth Amendment, based on alleged deliberate indifference to his serious medical needs during a period of his incarceration at the Attica Correctional Facility ("Attica CF"), and alleged retaliatory transfer for exercising his right to file an inmate grievance. Pending for determination are the parties' respective motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Dkt. ##26, 33. For the reasons that follow, plaintiff's motion is denied, and defendants' motion is granted.


The following factual and procedural background is derived from the pleadings, declarations, exhibits, discovery materials, and other submissions on file (including the parties' respective Statements of Facts on Motion for Summary Judgment (Dkt. ##27 and 41) submitted in accordance with Rule 56(a) of the Local Rules of Civil Procedure for the Western District of New York).

Plaintiff was incarcerated at Attica CF from August 15, 2008 through June 9, 2009. Dkt. #17, p. 13. According to his inmate medical records, plaintiff was examined by Physician Assistant ("PA") Deborah Graf on October 2, 2008, regarding his request for orthotic footwear, which he had received on "previous bids." Dkt. #46, p. 112.[1] Upon noting plaintiff's history of lower back pain/sciatica, left hip degeneration, and right knee reconstructive surgery "20 yrs. ago, " PA Graf requested a further medical consultation for orthotic footwear for plaintiff, entering the request on the Facility Health Services ("FHS") computer system as an "initial referral" with a "routine" urgency level. Id. at 112, 242; see also Dkt. #29 (Rao Decl.), ¶¶8-9.

Dr. Jadow Rao, M.D., Facility Health Service Director at Attica CF, reviewed PA Graf's recommendation on October 2, 2008, and forwarded the recommendation to the Regional Medical Director in Albany for decision. Dkt. #29, ¶10. On October 3, 2008 the Regional Medical Director in Albany denied the request for an orthotics consultation, recommending instead that plaintiff be given insoles with arch support. Dkt. #46, p. 242. On October 6, 2008, the Review Committee upheld the Regional Medical Director's denial of the orthotics consultation request. Dkt. #29, ¶¶11-12; Dkt. #46, p. 242-43.

Plaintiff's Ambulatory Health Records ("AHR") reflect that on November 21, 2008, PA Graf saw plaintiff again and informed him that the request for an orthotics referral had been denied. Plaintiff then requested a prescription for knee and hip pain, and an "ACL knee brace." Dkt. #46, pp. 111. PA Graf prescribed a non-steroidal anti-inflammatory pain medication (Naprosyn), and entered a request on the FHS system for plaintiff to be referred to physical therapy for a knee brace evaluation. Dr. Rao approved the physical therapy referral, and plaintiff was seen by Physical Therapist ("PT") Danielle Jensen on December 8, 2008. During his visit with PT Jensen, plaintiff stated that "addressing his knee injury now is ridiculous." He refused pain medication, and reiterated his request for orthotics. PT Jensen indicated possible follow-up with physical therapy after receipt of the orthotics, if deemed medically appropriate. Id. at 111, 241; Dkt. #29, ¶¶15-17.

On December 29, 2008 plaintiff reported to sick call complaining that the pain in his left hip was making him put all of his weight on his right side, causing pain in his right knee. A request was entered on the FHS system for plaintiff to see his primary physician ("PRI") "soon." Dkt. #46, p. 111.

Plaintiff's AHR records further reflect that, on January 1, 2009, plaintiff complained to medical staff that the muscles of his lower back had "knotted up" while he was walking to the mess hall. Id. He reported his medical history of lower back pain, knee pain, reconstructive knee surgery, and hip degeneration. He requested pain medication "stronger than ibuprofen [or] Naprosyn, " and further stated that he had never taken pain medication while he was outside the correctional system. The entry reflects that plaintiff was able to walk without a limp to a wheelchair for return to his cell, and it was recommended that he receive meals in his cell for the next five days. Id.; Dkt. #29, ¶ 21.

On January 20, 2009, plaintiff filed Inmate Grievance Complaint No. A-54077-09, regarding the denial of a referral for orthotic footwear. See Dkt. #17, pp. 14-16. The Inmate Grievance Resolution Committee ("IRC") forwarded the complaint to Attica CF Nurse Administrator ("NA") Rosalyn Killinger for review. On January 26, 2009, NA Killinger responded that, based on her review of plaintiff's medical records, including the denial of an orthotics referral by both the Regional Medical Director and Review Committee in October 2008, it was her medical judgment that there was "no medical indication for orthotics" at that time, and that plaintiff "can ask for insoles with a cushion at sick call." Id. at 17. On January 30, 2009, the IGRC denied Grievance No. A-54077-09 based on NA Killinger's recommendation, and plaintiff did not appeal to the Superintendent within seven days, as required by DOCCS' grievance procedures. Id. at 11-12; see also Dkt. #30 (Killinger Decl.), ¶¶ 6-9; Dkt. #31(Conway Decl.), ¶ 6.

Meanwhile, plaintiff was seen by his primary physician, Dr. John Schwab, M.D., on January 27, 2009. Dr. Schwab noted that plaintiff "fell" on January 1, 2009, and reported plaintiff's complaints of moderate pain in his left hip and right knee, sciatica, and denial of an orthotics consultation. He ordered x-rays, a Lennox ACL brace, and orthotic boots with insoles. Dkt. #46, p. 110. However, plaintiff's AHR progress notes and FHS referral history records reflect that the orthotics referral was not entered into the FHS system until plaintiff saw Dr. Schwab again on March 3, 2009. Id. at 109; Dkt. #25, pp. 4-5.

On February 6, 2009, plaintiff was seen at sick call complaining of a sore throat, increasing numbness and tingling in his left leg, and a sharp pain in his side, and a referral request was entered on the FHS system for plaintiff to be seen again by his primary doctor "soon." Id. at 109; Dkt. #25, p. 4. On February 20, 2009, plaintiff reported to sick call to check on his pending appointment for an orthotics fitting (as previously ordered by Dr. Schwab) and to address his complaints of numbness and tingling, whereupon medical staff noted that plaintiff was still waiting for referral to his primary "as per AHR entry 2/6/09." Dkt. #46, p. 109.

As indicated above, plaintiff was seen by Dr. Schwab on March 3, 2009, at which time Dr. Schwab's referral for orthotics was entered into the FHS system. The reason for the referral was stated on the FHS printout as follows:

[Inmate] requires orthotic boot to take impact off left hip, due to right knee being fully reconstructed. Extra in[-]depth boot allows for molded insert so that weight can be distributed evenly in foot. Needs ankle support.

Dkt. #25, p. 5. However, on March 6, 2009, the Regional Medical Director and Review Committee once again denied the request for an orthotics referral, instead recommending "insole with arch support." Id.

Also on March 6, 2009, x-rays were taken of plaintiff's left hip and lumbar spine. The radiology report indicates no evidence of fracture, dislocation, or joint problems, and the radiologist's impression was that both the lumbar spine and left hip were normal. Dkt. #46, p. 151. Dr. Schwab reviewed the x-ray results on March 19, 2009, and indicated that "no action is required at this time." Id.

On March 26, 2009, plaintiff sent an "Inter-Facility Communication" to Attica CF Superintendent James Conway regarding the IRGC's denial of Grievance No. A-54077-09, recounting the history of his attempts to obtain orthotics (including events occurring subsequent to the denial), and "respectfully requesting [Superintendent Conway's] attention to this matter." Dkt. #17, pp. 27-28. Plaintiff also wrote to the IGRC on March 30, 2009, to request a new hearing or an appeal of Grievance No. A-54077-09, explaining that he ...

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