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Morales v. Fischer

United States District Court, W.D. New York

September 22, 2014

EDGAR MORALES, 10-A-0052, Plaintiff,
BRIAN FISCHER, Commissioner, Department of Corrections and Community Supervision; CARL J. KOENIGSMANN, M.D., Dep. Commr./Chief Medical Officer, Department of Corrections and Community Supervision; DALE ARTUS, Superintendent, Wende Correctional Facility; ROSLYN KILLINGER, Deputy Supt. of Facility Health Services, Wende Correctional Facility; JACQUELINE LEVITT, M.D., Facility Health Services Director, Wende Correctional Facility; and HOPE OBERTEAN, Nurse Practitioner, Wende Correctional Facility, sued in their individual and official capacities, Defendants

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[Copyrighted Material Omitted]

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Edgar Morales, Plaintiff, Pro se, Alden, NY.

For Brian Fischer, Commissioner, Department of Corrections and Community Supervision, Carl J. Koenigsmann, M.D., Dep. Commr./Chief Medical Officer, Department of Corrections and Community Supervision, Dale Artus, Superintendent, Wende Correctional Facility, Roslyn Killinger, Deputy Supt., of Facility Health Services, Wende Correctional Facility, Jacqueline Levette, M.D., Facility Health Services Director, Wende Correctional Facility, Hope Obertean, Nurse Practitioner, Wende Correctional Facility, sued in their individual and official capacities, Defendants: Bernard F. Sheehan, LEAD ATTORNEY, N.Y.S. Attorney General's Office, Department of Law, Rochester, NY.

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ELIZABETH A. WOLFORD, United States District Judge.


Plaintiff Edgar Morales (" Plaintiff" ), appearing pro se, commenced this action under 42 U.S.C. § 1983. (Dkt. 1). Plaintiff, an inmate in the custody of the New York State Department of Corrections and Community Supervision (" DOCCS" ), alleges that his constitutional rights have been violated during his confinement at Wende Correctional Facility (" Wende" ). Defendants, each an employee of DOCCS during the relevant time, have moved to dismiss Plaintiffs complaint pursuant to Fed.R.Civ.P. 12(b)(6), or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. (Dkt. 10).

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Plaintiff asserts a claim against Defendants under the Eighth and Fourteenth Amendments to the United States Constitution, alleging that Defendants have failed to provide him with adequate treatment for his liver and abdomen pain.[1] The record shows, however, that Plaintiff has received medical treatment for his complaints, and there is no evidence that, to the extent that the individual Defendants have had any personal involvement in Plaintiff's treatment, their decisions in that regard have been based on anything other than their appropriate and professional medical judgment. As a result, summary judgment is warranted in favor of Defendants.


Plaintiff is currently confined at Wende, and was so confined during the relevant time period. (Dkt. 1 at ¶ 3).

During the relevant time period, Brian Fischer was the Commissioner of DOCCS; Carl J. Koenigsman was the Deputy Commissioner and Chief Medical Officer of DOCCS; Dale Artus was the Superintendent of Wende; Roslyn Killinger was the Deputy Superintendent for Health Services at Wende; and Hope Obertean was a Nurse Practitioner at Wende. (Dkt. 10-3 at 1-2). Defendant Jacqueline Levitt is a medical doctor licensed to practice medicine in New York State. (Dkt. 10-4 at ¶ ¶ 1-3). Dr. Levitt is employed as a doctor for DOCCS, and was assigned to the Wende facility during the relevant time period. ( Id. at ¶ ¶ 3-4).

While incarcerated at Riker's Island under the alias Edwardo Gonzales, Plaintiff was treated with the medication chemoprophylaxis for approximately one month in late 2009, after Plaintiff tested positive for tuberculosis. (Dkt. 10-4 at ¶ 8; Dkt 12 at 3-5). In January 2010, Plaintiff, then using his current alias Edgar Morales, tested positive for tuberculosis while housed at Downstate Correctional Facility. (Dkt. 1 at ¶ 18; Dkt. 10-4 at ¶ 9; Dkt. 12 at 7, 9). A skin test registering over 5 mm indicates that treatment is necessary in a prison situation. (Dkt. 10-4 at ¶ 13). Plaintiff's skin test registered positive for tuberculosis at 20 mm. ( Id. at ¶ 13). Accordingly, prison officials resumed Plaintiff's chemoprophylaxis treatment on January 15, 2010. (Dkt. 10-4 at ¶ 14; Dkt. 12 at 9, 11).

Plaintiff was transferred to Wende on February 8, 2010. (Dkt. 10-4 at ¶ 16). At some time thereafter, Plaintiff alleges he was prescribed the medications Sucralfate, Docusate Sodium, and Omeprazole. (Dkt. 1 at ¶ 19). Plaintiff claims that within seven days of starting the medications, he began experiencing " extreme pain and discomfort in his abdomen." ( Id. at ¶ 20). On February 23, 2010, Plaintiff began to complain of " indigestion." (Dkt. 10-4 at ¶ 17; Dkt. 12 at 29-45). Over time, Plaintiff complained of, inter alia, right-sided abdominal pain, left-sided abdominal pain,

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food intolerance, and difficulty swallowing. (Dkt. 10-4 at ¶ 19; Dkt. 12 at 29-45).

During one appointment with Plaintiff's primary care provider Dr. Levitt, Plaintiff claims that he informed Dr. Levitt of " chronic and severe discomfort on the right side of his abdomen, sharp pains in his liver, as well as heartburn and nausea," after which Dr. Levitt gave Plaintiff medication for an upset stomach and placed Plaintiff on a controlled diet. (Dkt. 1 at ¶ 21).

According to Plaintiff, between August 20, 2010, and February 22, 2011, he reported to Emergency Sick-Call at least 39 times to complain of liver and abdomen pain, only to be told to continue on his medications. ( Id. at ¶ 22). Plaintiff claims that he was admitted to the facility infirmary on at least two occasions because his pain had " become disabling." ( Id.).

Over the course of three and a half years, Plaintiff was seen by six different medical providers. (Dkt. 10-4 at ¶ 18). Plaintiff was also examined by two gastroenterologist consultants on three separate consultations. (Dkt. 10-4 at ¶ 20; Dkt. 12 at 17, 23, 27). These consultants reported no significant findings or recommendations for further testing. (Dkt. 10-4 at ¶ 20; Dkt. 12 at 17, 23, 27). All liver function tests were within normal limits. (Dkt. 10-4 at ¶ 21).

Plaintiff received an upper endoscopy, a colonoscopy, and abdominal x-rays that were all negative for any condition that would produce Plaintiffs complaints. (Dkt. 10-4 at ¶ 22; Dkt. 12 at 15, 19, 25).

In March 2012, Plaintiff claims he wrote Defendant Koenigsmann to request a liver biopsy. (Dkt. 1 at ¶ 23). Plaintiff alleges that Defendant Koenigsmann declined Plaintiffs request in a letter dated April 19, 2012, stating that a liver biopsy was not medically necessary. ( Id. at ¶ 24). According to Plaintiff, he has filed numerous complaints and letters with Defendants Fischer, Koenigsmann, Artus, and Killinger. ( Id. at ¶ 25).

Plaintiff is particularly concerned with a treatment note from September 2, 2010, associated with Plaintiffs abdominal ultrasound. (Dkt. 10-4; Dkt. 12 at 13). The note suggested a " [c]oarse appearing liver which may indicate cirrhotic change." (Dkt. 12 at 13). That ultrasound was performed using a portable machine at the Wende facility. (Dkt. 10-4 at ii 23). On November 23, 2010, Plaintiff received a follow-up ultrasound at Erie County Medical Center. (Dkt. 10-4 at ¶ 24; Dkt. 12 at 21). The November 2010 ultrasound was " entirely normal, with no suggestion of cirrhosis." (Dkt. 10-4 at ¶ 25; Dkt. 12 at 21). However, the November 2010 report notes a history of " 㳰 recently treated, U.S. with cirrhosis of liver." (Dkt. 20 at 15). Plaintiff argues that this note indicates that he has cirrhosis of the liver. ( Id. at 4). Defendants explain that the report notes an ultrasound with a history of cirrhosis, but the fact that the November 2010 ultrasound and subsequent tests showed that Plaintiffs liver is unremarkable means that Plaintiff does not have cirrhosis of the liver. (Dkt. 19-1 at ¶ ¶ 26-39). Additionally, Defendants note that Plaintiff had an abdominal and pelvic CT examination on August 24, 2013, that confirmed Plaintiff does not have liver damage. (Dkt. 19-1 at ¶ ¶ 38, 53; Dkt. 20 at 7).

Plaintiff claims that he now suffers from " cirrhosis of [the] liver" as a result of the medication received following his positive tuberculosis test. (Dkt. 20 at 4). Plaintiff contests the diagnosis of niberculosis and claims that he received medication that he did not need, which caused him to experience medical issues and pain. (Dkt. 1 at ¶ 31). Defendants argue that they have conducted multiple examinations and laboratory

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tests and have found no evidence of liver disease. (Dkt. 10-4 at ¶ 6). Medical professionals at Wende have not performed a liver biopsy due to the negative test and laboratory results. ( Id. at ¶ 27). Further, Defendants claim that " [a] biopsy is an invasive procedure and has potentially dangerous side effects." ( Id. at ¶ 28). Plaintiff continues to request further tests to confirm that he does not have cirrhosis of the liver. (Dkt. 20 at 4).

According to Plaintiff, Dr. Levitt informed Plaintiff that his problems were mental and referred him to be evaluated by the mental health staff at Wende. (Dkt. 1 at ¶ 26). When Plaintiff filed a grievance concerning his referral to mental health, Plaintiff alleges that Defendant Artus denied any staff calling Plaintiff " crazy." ( Id.). Plaintiff has been referred to the Mental Health unit to determine if Plaintiffs continued symptoms could be explained by non-physical causes. (Dkt. 10-4 at ¶ 29). However, according to Defendants, evaluation of Plaintiffs symptoms did not yield any positive findings. ( Id. at ¶ 29). Defendants deny calling Plaintiff " crazy." ( Id. at ¶ 30).

Plaintiff claims that he has been denied adequate medical treatment because he has not been provided a Spanish interpreter for every medical appointment. (Dkt. 1 at ¶ 25). Specifically, Plaintiff claims that he was denied an interpreter at one April 12, 2011, appointment with Defendant Obertean. ( Id.). According to Defendants, Plaintiff has been provided with an interpreter for every medical appointment, and his appointment with Defendant Obertean was rescheduled for an interpreter. (Dkt. 10-4 at ¶ 31-32; Dkt. 12 at 29-45).

Plaintiff alleges that Defendants " have displayed medical malpractice and deliberate indifference to the Plaintiffs serious medical needs." (Dkt. 1 at ¶ 12). Plaintiff filed his complaint on March 13, 2013. (Dkt. 1). On May 7, 2013, this Court granted Plaintiff motion to proceed in forma pauperis. (Dkt. 7). Presently before the Court is Defendants' motion to dismiss and/or for summary judgment, filed August 28, 2013. (Dkt. 10).


A. Standard of Law -- Motion for Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes " that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Once the moving party has met its burden, the opposing party '" must do more than simply show that there is some metaphysical doubt as to the material facts .... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." ' Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec., 475 U.S. at 586-87) (emphasis in original). " [T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. ... " Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original).

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" Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery." Fed.R.Civ.P. 56(b).

" '[C]aution should be exercised in granting summary judgment when the nonmoving party lacks relevant discovery ....'" Munoz v. Monpetit, No. 9:11-CV-0111 (DNH/TWD), at *1 n.1 (N.D.N.Y. Feb. 28, 2013) (quoting Aniero Concrete Co. v. New York City Constr. Auth., No. 94 Civ. 9111, at* 17 (S.D.N.Y. Jan. 3, 1997)). However, " [t]he mere fact that no formal discovery has taken place does not preclude the filing of a motion under Rule 56." Burke v. State Univ. of N.Y., No. 3:12-cv-1013, at *11-12 (N.D.N.Y. Nov. 29, 2012); see also Munoz, at *2 (granting defendants' pre-answer motion for summary judgment); Ali v. City of New York, No. 11 Civ. 5469 (LAK), at * 11 n.10 (S.D.N.Y. Sept. 5, 2012) (noting that, " [i]n appropriate circumstances, summary judgment may be granted prior to discovery." ).

Here, the Court may properly consider Defendants' motion as a motion for summary judgment. Plaintiff was provided with the materials required to give adequate notice to a pro se litigant of requirements of a summary judgment motion in accordance with Local Rule 56(b). (Dkt. 10-1 at 1-6). Plaintiff has not requested the opportunity for additional discovery, and he has attached to his opposition papers grievances, medical records, and affidavits in support of his claims. (Dkt. 17 at 15-102). Further, it is evident from the language used in Plaintiffs opposition papers that he understands the summary judgment standard and is responding to that standard. ( Id. at 13) (" Wherefore, defendants [sic] motion for dismissal and/or summary ...

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