Opinion
Civil Action No. 9:14-CV-0116 (TJM/DEP)
06-29-2016
DAVID CINTRON, Plaintiff, v. NURSE DENISE REOME, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: DAVID CINTRON, Pro se 1010 E. 178th Street Apt. 8-2 Bronx, NY 10460-2973 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 CHRISTOPHER W. HALL, ESQ. Assistant Attorney General
APPEARANCES:
FOR PLAINTIFF:
DAVID CINTRON, Pro se
1010 E. 178th Street
Apt. 8-2
Bronx, NY 10460-2973
FOR DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224 CHRISTOPHER W. HALL, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
This is a civil rights action brought by pro se plaintiff David Cintron, a former New York State prison inmate, against a physician and three nurses employed at the corrections facility in which he was incarcerated at the relevant times, pursuant to 42 U.S.C. § 1983. In his complaint, as twice amended, plaintiff alleges that he cut his tongue on a piece of glass while eating dinner, causing his tongue to bleed, and that the defendants failed to provide him with pain medication and a means to stopping the bleeding, and further refused to have him x-rayed to determine whether he had swallowed additional pieces of glass. Plaintiff contends that by their actions, defendants violated his rights under the Eighth Amendment to the United States Constitution.
The parties have cross-moved for summary judgment in their favor. For the reasons set forth below, I recommend that the portions of defendants' summary judgment motion that seeks dismissal on the basis that plaintiff failed to properly exhaust available administrative remedies be denied, but that the motion be granted on the merits, and that plaintiff's motion be denied. I. BACKGROUND
In light of the procedural posture of the case, and my ultimate recommendation, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Prior to October 2015, plaintiff was a prison inmate being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). See generally Dkt. No. 89; see also Dkt. No. 105. At the times relevant to his claims, plaintiff was housed in the Upstate Correctional Facility ("Upstate"), a maximum security prison comprised exclusively of special housing unit ("SHU") cells in which inmates are confined for twenty-three hours each day, primarily for disciplinary reasons. Dkt. No. 89; see Samuels v. Selsky, No. 01-CV-8235, 2002 WL 31040370, at *4 n.11 (S.D.N.Y. Sept. 12, 2002). It appears that in addition to being confined in a SHU cell, at the relevant times plaintiff was subject to a restrictive diet and a "safe distance order." See Dkt. No. 98-4 at 7.
On April 10, 2011, while eating his kosher loaf for dinner, plaintiff experienced a sharp pain and crunching sound, and discovered that the loaf contained a small piece of glass. Dkt. No. 89 at 12. Plaintiff was able to spit out the glass, and noticed that his tongue was bleeding. Id. Plaintiff reported the incident to Corrections Sergeant T. Debyah, who advised plaintiff that he was going to summon a nurse. Id. Sergeant Debyah returned with defendant Reome, a corrections nurse, as well as another corrections officer. Dkt. No. 89 at 13. The second corrections officer photographed the piece of glass that plaintiff had removed from his mouth, but did not take photographs of the plaintiff's tongue. Id.
After being told what happened, defendant Reome examined the plaintiff and observed that he had a less than one-quarter inch superficial abrasion on the right side of his tongue. Dkt. No. 98-4 at 2, 7-8. Nurse Reome did not observe any drainage or bleeding from the tongue at that time. Id.
Concerned that the plaintiff may have swallowed a piece of glass, Nurse Reome contacted the on-call physician, defendant Dr. Ira Weissman, for his advice. Dkt. No. 98-4 at 2. Dr. Weissman responded to Nurse Reome that no treatment was necessary and that if plaintiff did swallow glass, "it just has to pass." Id. at 2.
During her examination of the plaintiff, Nurse Reome observed that the tongue abrasion did not appear to have any affect on his ability to conduct daily activities, nor did it appear to her that plaintiff was in substantial pain. Dkt. No. 98-4 at 3. Accordingly, based upon her observations and examination, Nurse Reome concluded that plaintiff had a minor tongue abrasion for which no treatment or further evaluation was warranted or necessary. Id.
Plaintiff was seen on April 11, 2011 by defendant Nurse J. Bergeron. Dkt. No. 89 at 15; Dkt. No. 98-4 at 8. At that time, plaintiff requested that he be provided with something to stop his tongue from bleeding, and that he be allowed to see a doctor and sent for x-rays, believing that he had swallowed glass. Id. Upon examination, Nurse Bergeron observed no bleeding and, based upon the entry in plaintiff's medical records from April 10, 2011, found no need to order x-rays. Dkt. No. 98-4 at 8.
Plaintiff was seen by defendant Nurse Marla Travers on April 12, 2011. Dkt. No. 89 at 16; Dkt. No. 98-5 at 2. Upon examining the plaintiff, Nurse Travers concluded that plaintiff had a very minor tongue abrasion for which no treatment or further evaluation was warranted or necessary. Dkt. No. 98-5 at 2. After reviewing plaintiff's medical records, defendant Travers determined that there was no substantial change in plaintiff's condition, and observed that the tongue abrasion did not appear to have any affect on plaintiff's ability to conduct daily activities, nor did plaintiff appear to be in substantial pain. Id.
Plaintiff's medical records reflect that he was visited by medical personnel at his cell on April 13, 15, 19, and 20, 2011. Dkt. No. 98-4 at 9-11. There is no reference in the medical record entries for those dates to continued bleeding of plaintiff's tongue. Id. at 3, 9-11.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on February 3, 2014. Dkt. No. 1. Named as defendants in plaintiff's original complaint were Nurse Denise Maas, now known as Denise Reome, Nurse Marla Travers, and Dr. Evelyn Weissman. Id. Plaintiff filed an amended complaint on March 23, 2015, adding Nurse J. Bergeron as a defendant. Dkt. No. 68. With permission of the court, plaintiff filed a second amended complaint ("SAC"), the currently operative pleading, on August 24, 2015. Dkt. No. 89. That SAC eliminated plaintiff's claims against Dr. Evelyn Weissman and added Dr. Ira Weissman as a defendant, also asserting claims against Nurses J. Bergeron, Denise Reome, and Marla Travers. Id.
On November 21, 2015, plaintiff filed a motion for summary judgment requesting a finding of liability on the part of the defendants on his deliberate medical indifference claims. Dkt. No. 93. Defendants responded in opposition to that motion and cross-moved for summary judgment in their favor on October 16, 2015. Dkt. No. 98. In their motion, defendants have argued that (1) plaintiff's deliberate medical indifference claims are precluded based upon his failure to exhaust available administrative remedies before commencing suit; (2) the deliberate medical indifference claims are legally deficient on the merits; and (3) in any event, they are entitled to qualified immunity from suit. Id. Despite being notified of the deadline of October 30, 2015 for responding to defendants' cross-motion, plaintiff has failed to file an opposition to that motion. Dkt. No. 1, 2. The parties' cross-motions, which are now ripe for determination, have been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict"). In a case such as this, where parties have interposed cross-motions for summary judgment, each motion must be independently assessed, using this standard as a backdrop. See Light Sources, Inc.v. Cosmedico Light, Inc., 360 F. Supp. 2d 432, 434 (D. Conn. 2005).
B. Exhaustion of Remedies
In his SAC, plaintiff alleges that he filed a grievance concerning the medical deliberate indifference complained of in this action, and pursued the grievance through all available steps. Dkt. No. 89 at 2. While acknowledging the filing of a grievance concerning the restricted diet loaf served to the plaintiff in April 2011, defendants note that the focus of that grievance was upon an alleged adulteration of his food, including with pieces of glass causing bleeding of his tongue. Dkt. No. 98-8 at 4-7; Dkt. No. 98-1 at 1-2. Defendants maintain that plaintiff's complaint is therefore subject to dismissal on the procedural basis that he failed to properly exhaust available administrative remedies concerning the medical attention that followed his ingestion of the adulterated loaf before commencing this action.
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly requires that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 84 (2006) ("Exhaustion is . . . mandatory. Prisoners must now exhaust all 'available' remedies[.]"); Hargrove v. Riley, No. 04-CV-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan. 31, 2007) ("The exhaustion requirement is a mandatory condition precedent to any suit challenging prison conditions, including suits brought under Section 1983."). The Supreme Court recently reaffirmed that mandatory nature of the exhaustion requirement in its decision in Ross v. Blake, ___St. Ct.___, 2016 WL 3128839, at *6 (2016).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
"[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). In the event the defendant establishes that the inmate plaintiff failed "to fully complete[] the administrative review process" prior to commencing the action, the plaintiff's complaint is subject to dismissal. Pettus v. McCoy, No. 04-CV-0471, 2006 WL 2639369, at *1 (N.D.N.Y. Sept. 13, 2006) (McAvoy, J.); see also Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95; accord, Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007).
In accordance with the PLRA, the DOCCS has instituted a grievance procedure, entitled the Inmate Grievance Program ("IGP"), and made it available to inmates. The IGP is comprised of three steps that inmates must satisfy when they have a grievance regarding prison conditions. 7 N.Y.C.R.R. § 701.5; Mingues v. Nelson, No. 96-CV-5396, 2004 WL 324898, at *4 (S.D.N.Y. Feb. 20, 2004). Embodied in 7 N.Y.C.R.R. § 701, the IGP requires that an inmate first file a complaint with the facility's IGP clerk within twenty-one days of the alleged occurrence. 7 N.Y.C.R.R. § 701.5(a)(1). If a grievance complaint form is not readily available, a complaint may be submitted on plain paper. Id. Representatives of the facility's inmate grievance resolution committee ("IGRC") have up to sixteen days after the grievance is filed to informally resolve the issue. Id. at § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen days after receipt of the grievance. Id. at § 701.5(b)(2).
A grievant may then appeal the IGRC's decision to the facility's superintendent within seven days after receipt of the IGRC's written decision. Id. at § 701.5(c). The superintendent must issue a written decision within a certain number of days after receipt of the grievant's appeal. Id. at § 701.5(c)(i), (ii).
Depending on the type of matter complained of by the grievant, the superintendent has either seven or twenty days after receipt of the grievant's appeal to issue a decision. Id. at § 701.5(c)(3)(i), (ii).
The third and final step of the IGP involves an appeal to the DOCCS Central Office Review Committee ("CORC"), which must be taken within seven days after receipt of the superintendent's written decision. Id. at § 701.5(d)(1)(i). The CORC is required to render a written decision within thirty days of receipt of the appeal. Id. at § 701.5(d)(2)(i).
Accordingly, at each step of the IGP process, a decision must be rendered within a specified time period. Significantly, "[a]ny failure by the IGRC or the superintendent to timely respond to a grievance or first-level appeal, respectively, can - and must - be appealed to the next level, including CORC, to complete the grievance process." Murray v. Palmer, No. 03-CV-1010, 2010 WL 1235591, at *2 (N.D.N.Y. Mar. 31, 2010) (Hurd, J., adopting report and recommendation by Lowe, M.J.) (citing, inter alia, 7 N.Y.C.R.R. § 701.6(g)(2)).
Generally, if a plaintiff fails to follow each of the required three steps of the above-described procedure prior to commencing litigation, he has failed to exhaust his administrative remedies. See Ruggerio v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) ("[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." (quotation marks omitted)).
The grievance referenced by the plaintiff in his SAC as having been filed regarding the incident in question is Grievance No. UST-45844-11. Dkt. No. 93-1; see Dkt. No. 93-3; see also Dkt. No. 98-3 at 4-6. In that grievance plaintiff complains of the adulteration of his food, beginning from the morning of April 7, 2011, and the failure of corrections officers to take photographs of his tongue after his report, on April 10, 2011, of having been cut by glass. Dkt. No. 98-3 at 4-6. The only reference to medical attention rendered by any of the defendants is found in the following statements:
I told Nurse Maas [Reome] that I think that I swallow [sic] some glass as well she said when she comes back from talking with the Doctor she is going to let me know. What she is going to do she saide [sic] that to dont [sic] worry the tongue is ok but my tongue is still bleeding... even Nurse Travers violated my Eighth Amendment Right [sic] by leaving me with a swollen and infected upper bleeding lip . . .[.]Dkt. No. 98-3 at 5.
In his decision concerning the grievance, the superintendent at Upstate found no evidence of staff misconduct. Dkt. No. 98-3 at 8. In arriving at his finding, the superintendent appears to have focused upon the actions of corrections officials, including, as stated by a corrections sergeant, "that he had the grievant seen by medical staff and Inmate Injury Report was completed, . . .". Id. The superintendent's decision makes no reference to allegations that the defendants failed to provide adequate medical attention. Id. In his statement to the CORC appealing that determination, plaintiff stated the following:
On the non kosher loaf it comes wrap [sic] two time one on the loaf and another over plastic and loaf why not the kosher loaf they [sic] way doing that befor [sic] intil [sic] CO Marshell and CO Hermam started playing with the loaf then CO Labarge.Id. The only reference in the CORC's decision to any request for medical attention is the following except:
CORC notes that Nurse F. . . states that the grievant did not request to have his blood pressure taken on 4/10/11. It is further noted that the grievant's concerns regarding Nurse T . . . and his upper lip were addressed by CORC in UST-45646-11, dated 6/29/11.Dkt. No. 98-3 at 10.
Notwithstanding the paucity of references to the medical treatment issued to plaintiff, an extremely generous reading of plaintiff's grievance and subsequent appeal to the CORC, in combination with the decisions of the superintendent and the reviewing body, could support a finding that those investigating the matter were on notice of plaintiff's claim that his cut and bleeding tongue were not adequately addressed by medical personnel at the facility. Accordingly, and in light of my recommendation on the merits, I recommend against dismissal of plaintiff's deliberate medical indifference claims on this procedural basis.
C. Merits of Claims
Defendants maintain that in the event plaintiff is allowed to puruse his deliberate indifference claims on the merits, summary judgment dismissing those claims is nonetheless appropriate because, based upon the record now before the court, no reasonable factfinder could conclude that plaintiff has proven both the objective and subjective elements of a deliberate medical indifference cause of action.
Plaintiff's deliberate medical indifference claims implicate the Eighth Amendment to the United States Constitution, which prohibits punishment that is "incompatible with the evolving standards of decency that mark the progress of a maturing society[,] or which involve the unnecessary and wanton infliction of pain[.]" Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (quotation marks and citations omitted)). While the Eighth Amendment "does not mandate comfortable prisons, . . . neither does it permit inhumane ones[.]" Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation marks and citation omitted). "These elementary principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration." Estelle, 429 U.S. at 103. Failure to provide inmates with medical care, "[i]n the worst cases, . . . may actually produce physical torture or lingering death, [and] . . . [i]n less serious cases, . . . may result in pain and suffering which no one suggests would serve any penological purpose." Id. (quotation marks and citations omitted).
A claim alleging that prison officials have violated an inmate's Eighth Amendment rights by inflicting cruel and unusual punishment must satisfy both objective and subjective requirements. Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009); Price v. Reilly, 697 F. Supp. 2d 344, 356 (E.D.N.Y. 2010). To meet the objective requirement, the alleged deprivation must be "sufficiently serious." Farmer, 511 U.S. at 844; see also Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) ("[T]he objective test asks whether the inadequacy in medical care is sufficiently serious."). Factors informing this inquiry include "whether a reasonable doctor or patient would find it important and worthy of comment, whether the condition significantly affects an individual's daily activities, and whether it causes chronic and substantial pain." Salahuddin, 467 F.3d at 280 (quotation marks and alterations omitted). Determining whether a deprivation is sufficiently serious requires a court to examine the seriousness of the deprivation, and whether the deprivation represents "a condition of urgency, one that may produce death, degeneration, or extreme pain[.]" Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (quotation marks omitted). Importantly, it is "the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract, that is relevant for Eighth Amendment purposes." Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003).
To satisfy the subjective requirement, a plaintiff must demonstrate that the defendant had "the necessary level of culpability, shown by actions characterized by 'wantonness.'" Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). "In medical-treatment cases . . ., the official's state of mind need not reach the level of knowing and purposeful infliction of harm; it suffices if the plaintiff proves that the official acted with deliberate indifference to inmate health." Salahuddin, 467 F.3d at 280. "Deliberate indifference," in a constitutional sense, "requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result." Id.; see also Farmer, 511 U.S. at 837 ("[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."). "Deliberate indifference is a mental state equivalent to subjective recklessness, as the term is used in criminal law." Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 839-40).
By plaintiff's own account, the full extent of his injury from biting into glass was a cut and bleeding on his tongue. See Dkt. No. 89 at 15. Upon examination of plaintiff's tongue on the day of the incident, Nurse Reome, observed only a less than one quarter inch superficial abrasion on the right side of his tongue. Dkt. No. 98-4 at 2. A similar observation was made two days later by defendant Travis, another nurse at the facility. Dkt. No. 98-5 at 2. Plaintiff has offered no evidence to show that his injury was anything more. In addition, plaintiff's medical records show no sign (or complaints) of any injury to plaintiff's tongue beginning three days after his first complaint. See Dkt. No. 98-4 at 9-11.
It is well-established that such minor injuries do not normally rise to the level of seriousness required to support a viable claim medical indifference under the Eighth Amendment. See, e.g., Harris v. Morton, No. 9:05-CV-1049, 2008 WL 596891, at *3, n.2 (N.D.N.Y. Feb. 29, 2008) (Kahn, J. and Treece, M.J.) ("We note that although Plaintiff states he suffered from a 'snapped' neck, he does not indicate he suffered from anything other than a generic neck injury."); Bennett v. Hunter, No. 9:02-CV-1365, 2006 WL 1174309, *3 (N.D.N.Y. May 1, 2006) (Scullin, S.J. and Lowe, M.J.) (pinched nerve not a serious medical need); Jones v. Furman, No. 02-CV-939F, 2007 WL 894218, at *10 (W.D.N.Y. Mar. 21, 2007) (soreness, pain in and a lump behind his right ear, lump on the back of his head, small abrasions on his nose and knuckle, and bruising to his back, ribs do not constitute the requisite serious medical need) (citing Hemmings v. Gorczyk, 134 F.3d 104, 109 (2d Cir.1998)); Tapp v. Tougas, No. 9:05-CV-0149, 2008 WL 4371766, at * 9 (N.D.N.Y. Aug. 11, 2008) (Peebles, M.J.) (citing Peterson v. Miller, No. 9:04-CV-797, 2007 WL 2071743, at *7 (N.D.N.Y. July 13, 2007) (noting that a "dull pain" in plaintiff's back and persistent rash on plaintiff's foot did not raise a constitutional issue) (citing Hathaway Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert. denied, 513 U.S. 1154, 115 S. Ct. 1108 (1995))), Report and Recommendation Adopted in Part and Rejected in Part, 2008 WL 4371762 (N.D.N.Y. Sep 18, 2008) (Mordue, C.J.); Salaam v. Adams, No. 03-CV-0517, 2006 WL 2827687, *10 (N.D.N.Y. Sept. 29, 2006) (Kahn, J. and Lowe, M.J.) (intermittent back pain requiring pain relievers and physical therapy, a gastrointestinal problem with stomach pains, and a psychological problem requiring Wellbutrin and/or Neurontin did not constitute serious medical condition); see also Ford v. Phillips, No. 05 Civ. 6646, 2007 WL 946703, at *12 & n.70 (S.D.N.Y. Mar. 27, 2007) (finding that plaintiff's allegations of bruises, abrasions, and blood in his urine for a few weeks did not constitute a sufficiently serious condition giving rise to a medical indifference claim); Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 311 (S.D.N.Y.2001) (cut finger with "skin ripped off" is insufficiently serious); Bonner v. N.Y. City Police Dep't, No. 99 Civ. 3207, 2000 WL 1171150, at *4 (S.D.N.Y. Aug. 17, 2000) (inability to close hand due to swelling insufficiently serious to constitute Eighth Amendment violation); Gomez v. Zwillinger, 1998 U.S. Dist. LEXIS 17713, at *16 (S.D.N.Y. November 6, 1998) (back pain and discomfort not sufficiently serious); Jones v. New York City Health & Hosp. Corp., 1984 U.S. Dist. LEXIS 21694 at *3-4 (S.D.N.Y. November 28, 1984) (deliberate indifference claim dismissed where plaintiff challenged treatment for bruises on head and body); Thaxton v. Simmons, No. 9:10-CV-1318, 2013 WL 4806457, at *13 (N.D.N.Y. May 23, 2013) (Treece, M.J.) (finding that "no rational juror could conclude that [a cut tongue] which healed on its own in a matter of days was objectively sufficiently serious to sustain an Eighth Amendment deliberate indifference claim"), Report and Recommendation Adopted, 2013 WL 4806457 (N.D.N.Y. Sep 9, 2013) (D'Agostino, D.J.).
Plaintiff also demanded that he be x-rayed to determine whether he had swallowed additional pieces of glass, which request was denied. However, there is no evidence currently in the record before the court to suggest that plaintiff suffered any symptoms that would raise even the possibility that he swallowed glass, let alone the existence of a serious medical condition associated with that fact. Indeed, the only evidence in the record concerning that matter is a statement, albeit hearsay, made by Dr. Ira Weismann to Nurse Reome, to the effect that if glass was swallowed it would have to pass, a process that would be enhanced by the nutritional loaf served to the plaintiff. Dkt. No. 98-4 at 2.
In addition to being unable to meet the objective prong of the Eighth Amendment deliberate indifference test, plaintiff cannot demonstrate subjective indifference by any of the named defendants in the action. Plaintiff was seen and examined by medical personnel concerning his complaints of a cut on his tongue on April 10, 11, and 12, 2011. Dkt. No. 98-4 at 3. In addition, prison physician Dr. Weisman was consulted concerning the matter. Id. at 2. Although plaintiff alleges that Nurse Reome "walked away smiling" after examining him on April 10, 2011, Dkt. No. 89 at 14, even assuming this is true, such a fact is insufficient to establish that, subjectively, Nurse Reome was both aware of facts from which an inference could be drawn that a substantial risk of serious harm existed and also, by inference, demonstrated subjective recklessness with respect to that risk.
Because I conclude, based on the record now before the court, that no reasonable factfinder could determine that plaintiff has met either the objective or subjective prong of the deliberate medical indifference standard, I recommend that his complaint be dismissed on the merits.
IV. SUMMARY AND RECOMMENDATION
Both plaintiff and defendants have moved for summary judgment with respect to the merits of plaintiff's deliberate indifference claim. In addition, defendants have argued that plaintiff's Eighth Amendment claims should not be entertained by the court in light of his alleged failure to exhaust available administrative remedies before commencing suit. Although the medical treatment plaintiff received is by no means the centerpiece of plaintiff's grievance concerning glass being found in his food, the grievance does make passing reference to medical attention received by him after his tongue was allegedly cut on a piece of glass. Accordingly, drawing all inferences and resolving all ambiguities in plaintiff's favor, I am unable to recommend that his complaint be dismissed for failure to exhaust available administrative remedies. I have determined, however, that no reasonable factfinder could conclude defendants were deliberately indifferent to his serious medical needs. Accordingly, it is respectfully
RECOMMENDED that plaintiff's motion for summary judgment in this action (Dkt. No. 93) be DENIED, that defendants' cross-motion for summary judgment dismissing plaintiff's second amended complaint (Dkt. No. 98) be GRANTED, and that plaintiff's second amended complaint be DISMISSED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge Dated: June 29, 2016
Syracuse, NY