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holding that, "[a]lthough they may have failed to diagnose or even detect his cancer," the defendants did not act with "deliberate indifference" because they "ordered medical tests, prescribed courses of treatments, and monitored his laboratory and radiological reports"
Summary of this case from Melvin v. Cnty. of WestchesterOpinion
Civil No. 9:99-CV-2071 (FJS/GLS)
October 11, 2002
KEVIN THOMAS, Plaintiff, Cape Vincent, New York, for Plaintiff Pro Se.
HON. ELIOT SPITZER, Attorney General of State of New York, MARIA MORAN, ESQ., the Assistant Attorney General, Syracuse, NY, for Defendant.
REPORT-RECOMMENDATION
I. INTRODUCTION
This matter was referred to the undersigned for a Report-Recommendation by the Hon. Frederick J. Scullin, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). The defendants have filed a motion for summary judgment (Dkt. Nos. 22-25), and pro se plaintiff, Kevin Thomas ("Thomas") has failed to respond. Thomas brings this action under 42 U.S.C. § 1983 claiming that the defendants violated his rights under the Fifth, Eighth, and Fourteenth Amendments. He seeks declaratory relief as well as compensatory and punitive damages from each of the defendants. After reviewing Thomas' claims and for the reasons set forth below, the defendants' motion for summary judgment should be granted.
The Second Circuit has consistently held that "failure of a district court to apprise pro se litigants of the consequences of failing to respond to a motion for summary judgment is ordinarily grounds for reversal." Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir. 1999). However, a district court is not required to explain the nature of summary judgment to a pro se litigant, in two circumstances: (1) where the pro se litigant's adversary "has already provided the litigant with requisite notice; or (2) where the record otherwise makes clear that the litigant understood the nature and consequences of summary judgment". Id. at 621. This court notes that Thomas was put on notice to his obligation by the defendants (see Dkt. No. 22). Moreover, in two subsequent letters to the court, Thomas acknowledges his obligation to respond and he received two extensions of time to file a response (see Dkt. Nos. 26 27). Nine months have elapsed since the last extension.
This court is uncertain of the facts which give rise to the alleged Fifth Amendment violation.
The Court notes that Thomas is suing under the due process and equal protection clause of the Fourteenth Amendment. The equal protection clause directs state actors to treat similarly situated people alike. See Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). "To prove an equal protection violation, claimants must prove purposeful discrimination directed at an identifiable or suspect class." Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995) (citations omitted). Here, Thomas presents no evidence that the policy discriminated against a particular class of inmates. Thus, Thomas' equal protection claim should be dismissed. On the issue of due process, Thomas again fails to state a viable claim. In order for a plaintiff to prevail on a § 1983 claim for denial of due process, he must establish: (1) that he possessed a liberty interest; and, (2) that the defendant(s) deprived him of that interest as a result of insufficient process." Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001) (citation omitted). In this case, neither of these elements have been demonstrated and this claim should also be dismissed.
II. PROCEDURAL HISTORY
On November 29, 1999, Thomas filed a complaint claiming that the defendants violated his constitutional rights when they failed to provide adequate medical treatment for his colon cancer. The defendants move for summary judgment on the following grounds: (1) the complaint is time barred; (2) Thomas has failed to exhaust his administrative remedies; (3) the defendants did not violate his right; (4) the defendants were not personally involved in the alleged violation; and, (5) the suit is barred by the Eleventh Amendment against the defendants in their official capacities.
The court shall address each of these issues seriatim.
III. FACTS
With some necessary additions, the following facts were taken from the defendants' statement of undisputed material facts.
On April 30, 1996, Thomas was seen at the Clinton Correctional Facility's Ambulatory Health Clinic for rectal bleeding, occasional pain in his scrotal area, and constipation. Defs.['] Mot. for Summary Judgment Ex. A. Dr. Kang Lee ("Lee") examined Thomas' testicles and found no sign of inflammation, and after a rectal examination, found nothing abnormal. Id. Lee prescribed colance (a stool softener) and milk of magnesia for one week. Id. On June 4, 1996, Lee saw Thomas for a complaint that upon defecation, he had lower abdominal pain which went away after his bowel movement. Id. Lee did not prescribe any treatment at that time. Id. On July 30, 1996, Thomas was seen on an emergency sick call for complaints of a burning sensation upon urination. Id. The nurse on call noted that his urine was negative for the presence of blood. Lee prescribed Bactrim (an antibiotic) to treat any urinary tract infection, and ordered an urinalysis test to rule out an infection. Id.; Defs.['] Mot. for Summary Judgment Ex. B.
On August 20, 1996, Thomas was seen by a nurse with a complaint of constipation for the past two weeks. Defs.['] Mot. for Summary Judgment Ex. A. Thomas was prescribed colance, milk of magnesia and told to increase his fluids. Id. He was also scheduled to see Dr. Wright ("Wright"). Id. On August 28, 1996, Thomas was examined by Wright and he prescribed metamucil. Id.
Dr. Wright, Medical Doctor at the Clinton Correctional Facility, is not a party to this action.
On September 23, 1996, Thomas was seen by Jean Carbone ("Carbone"), a Registered Nurse Practitioner. He complained of traces of blood in his urine, including his stool, and pain in his naval area. Id. He explained that he had a burning with the last drops of urine and an occasional brownish-yellow discharge from his penis. Id. Carbone ordered a urethral culture, a PSA (a marker of prostate cancer), a CBC (complete blood count), and an ACP (auto chemical panel), and noted that further work would be determined after the results of the tests were back. Id. On September 25, 1996, Carbone noted that an urinalysis test result indicated that Thomas had an infection. Id. He was prescribed Bactrim while the results of the other tests were pending. Id. It was noted that further urinalysis, culture and sensitivity tests were to be ordered in October. Id.
On October 4, 1996, Carbone noted that urinalysis, culture and sensitivity tests were to be repeated. Defs.['] Mot. for Summary Judgment Ex. A. Another urinalysis was done on October 18, 1996. Id., Ex. B. On October 28, 1996, a renal ultrasound was ordered as well as a 24-hour urine collection to test for the presence of protein and creatinine. Id., Ex. A. It was recommended that Thomas be sent for an urology consultation. Id. On October 29, 1996, Thomas had a follow-up appointment where he complained of pain in his right side and testicles. Id. He described the pain as if something was holding it when he tries to urinate, and he had dribbling afterward. Id. Prior to a bowel movement, Thomas stated that he had pain in his navel. Id. He was prescribed Cipro 500 mg (an antibiotic) as well as multivitamin and iron supplements. Id.
On October 31, 1996, Thomas had a renal (kidney) ultrasound which was normal, and had a kidney/ureter/bladder x-ray which showed no abnormalities. Id., Ex. C. On November 4, 1996, Lee reviewed the results of the 24-hour urine collection, and noted that Thomas' white blood count was high, he had frequent urination, and that he was currently on Cipro. Id., Ex. A. Lee noted that if Cipro did not work, he would order a GU (genito urinary) consultation. Id., Ex. A.
On November 13, 1996, Lee examined Thomas for complaints of frequent urination and dysuria (painful urination). Id., Ex. A. Lee noted that Cipro and Bactrim did not work and the kidney sonogram was negative. Id., Ex. A. Lee ordered another urinalysis test and a consultation with a nephrology (kidney) specialist. Id., Ex. A.
On December 11, 1996, Thomas filed a grievance where he claimed that he was not getting proper treatment for his hernia. Id., Ex. J. The Inmate Grievance Resolution Committee ("I.G.R.C.") noted that Thomas was last seen by the medical staff on December 5, 1996, and that he was awaiting a nephrology consultation. Id., Ex. J. The I.G.R.C. recommended that Thomas be scheduled for another call out. Id., Ex. J. On December 13, 1996, Thomas indicated that he agreed with the I.G.R.C. recommendation and that he wished to appeal to the superintendent. Id., Ex. J. On December 18, 1996, a response from First Deputy Superintendent Thomas Ricks, on behalf of the superintendent, determined that Thomas had been seen by the medical staff for his concerns and that the consultation for an outside clinic had been approved. Id., Ex. J. Thomas did not appeal this decision to the Central Office Review Committee (C.O.R.C.).
On December 27 and 30, 1996, Thomas was treated for flu symptoms. Id., Ex. A. On January 9, 1997, Thomas was seen on an emergency sick call for complaints of burning and itching upon urination and he was referred to Lee. Id. His urine culture was negative. Id. Lee ordered a third urinalysis as well as urine, culture and sensitivity tests. Id.
Lee also prescribed Pyridium, an analgesic used to treat urinary tract infections. Id. On January 13, 1997, Lee saw Thomas for complaints of excruciating pain in the supra-pubic area, diarrhea and abdominal pain since taking Pyridium so he prescribed Bentyl instead. Id.
On or about January 13, 1997, Dr. George Eisele ("Eisele"), M.D. diagnosed Thomas with chronic prostatitis (swollen prostate). Id., Ex. D. Eisele prescribed Cipro 550 mg for three months. Id. On January 17, 1997, Eisele also ordered a CBC, chemical profile and blood work as well as an urinalysis. Id., Exs. A B. On January 21, 1997, it was noted that Thomas was taking his medication and was prescribed colace for constipation. Id., Ex. A.
On January 29, 1997, Thomas was seen on an emergency sick call for increased hematuria in the past two days. Id. He was still having paraumbilical pains and chronic beige urethral discharge, and he had been having pain in his left scrotum for two days. Id. Thomas was admitted to the infirmary, and CBC and chemical profiles were ordered as well as an urinalysis and urethral discharge culture. Id., Ex. A. After a rectal exam, Wright discharged him from the infirmary. Id., Exs. A E. On January 31, 1997, LabCorp found that Thomas had low hemoglobin and hematocrit levels. Id., Exs. A B.
On February 5, 1997, Thomas was admitted to the Albany Medical Center Hospital and underwent a CT scan of his abdomen and pelvis which revealed findings consistent with a mass compressing the left side of his bladder. Id., Ex. F. Colorectal surgeons were consulted and surgery was recommended. Id. On February 7, 1997, Thomas underwent cystoscopy with left urethral stent placement and bladder biopsy, then a partial systoscopy of the dome of the bladder and removal of the entire tumor. Id. Placement of the suprapubic tube and foley catheter were then followed by anterior resection and descending colostomy and appendectomy. Id. Pathology results revealed that Thomas had colon cancer. He remained in the hospital until February 20, 1997. Id. He was kept in the infirmary until he was transferred to Coxsackie Correctional Facility's Regional Medical Unit on March 21, 1997. Id. Exs., A G.
IV. DISCUSSION A. Legal Standard
Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); accord F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994). The moving party has the burden of demonstrating that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999). "When a motion for summary judgment is made and supported . . . an adverse party may not rest upon the mere allegations or denials of the . . . pleading, but the adverse party's response, by affidavits or as otherwise provided in [Federal Rule of Civil Procedure 56(e)], must set forth specific facts showing that there is a genuine issue for trial." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]" Rexford Holdings, Inc. v. Biderman, 21 F.3d 522, 525 (2d Cir. 1994) (alternation in original) (citation omitted). However, it is well settled that on a motion for summary judgment, the court must construe the evidence in the light most favorable to the non-moving party. Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999).
Furthermore, in a pro se case, the court must view the submissions by a more lenient standard than that accorded to "formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972); see Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (a court is to read a pro se party's "supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest"). Indeed, the Second Circuit has stated that "[i]mplicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Any ambiguities and inferences drawn from the facts must be viewed in the light most favorable to the non-moving party. Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990); see LaFond v. General Physics Serv. Corp., 50 F.3d 165, 171 (2d Cir. 1995).
This liberal standard, however, does not excuse a pro se litigant from following the procedural formalities of summary judgment. Showers v. Eastmond, 2001 WL 527484, at *2 (S.D.N.Y. May 16, 2001). More specifically, Local Rule 7.1(a)(3) of this court specifically provides that "any facts set forth in the [moving party's] Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party." Local Rule 7.1(a)(3) further requires that the "non-movant shall file a Statement of Material Fact which mirrors the movant's statement in matching numbered paragraphs and which set forth a specific reference to the record where the material fact is alleged to arise." The courts of the Northern District have adhered to a strict application of Local Rule 7.1(a)(3)'s requirement on summary judgment motions. Giguere v. Racicot, 2002 WL 368534, at *2 (N.D.N.Y. March 1, 2002) (inter alia citing Bundy Am. Corp. v. K-Z Rental Leasing, Inc., 2001 WL 237218, at *1 (N.D.N.Y. Mar. 9, 2001)).
Furthermore, this Circuit adheres to the view that nothing in Rule 56 imposes an obligation on the court to conduct a search and independent review of the record to find proof of a factual dispute. Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002). As long as the local rules impose a requirement that parties provide specific record citations in support of their statement of material facts, the court may grant summary judgment on that basis. Id. at 470-71.
In this case, Thomas failed to provide the court with a response and further, a separate statement of undisputed material facts in compliance with Local Rule 7.1(a)(3). Consequently, the court will accept the properly supported facts contained in the defendants' 7.1 statement as true for purposes of this motion. With this standard in mind, the court now turns to the sufficiency of Thomas' claims.
The court notes that this does not apply to the various conclusions of law contained in the defendants' 7.1 statement.
B. Eleventh Amendment
The Eleventh Amendment provides that: "[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. Amend. XI. Although the Amendment does not specifically prohibit suits against a state by its own citizens, the Supreme Court has consistently applied that immunity to such cases. See Burnette v. Carothers, 192 F.3d 52, 57 (2d Cir. 1999) (citing Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974)).
Moreover, it is well established that Eleventh Amendment immunity applies not only when a state is a named defendant, but when liability must be paid from state coffers. See New York City Health Hosp. Corp. v. Perales, 50 F.3d 129, 134 (2d Cir. 1995) (citing Edelman, 415 U.S. at 665, 94 S.Ct. at 1356-57)); Dawkins v. State of New York, 1996 WL 156764, at *2 (N.D.N.Y. Mar. 28, 1996).
In this case, the defendants are being sued in their official and individual capacities. Since the Eleventh Amendment also applies to state officers, such as the defendants, it is recommended that Thomas' official capacity claims against the defendants should be dismissed.
C. Exhaustion: Prison Litigation Reform Act
Before addressing the substance of Thomas' claims, the court must first consider whether he properly exhausted his administrative remedies. The Prison Litigation Reform Act ("PLRA") requires that suits brought by prisoners under 42 U.S.C. § 1983 must first exhaust their available administrative remedies. The Supreme Court has held that the PLRA requires administrative exhaustion even where the grievance process does not permit award of money damages and prisoner seeks only money damages, so long as the grievance tribunal has authority to take some responsive action. See Booth v. Churner, 531 U.S. 731, 741, 121 S.Ct. 1819, 1825, 149 L.Ed.2d 958 (2001).
"No 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).
The New York State Inmate Grievance Program involves three steps. First, an inmate must submit a grievance to the clerk of the I.G.R.C. within 14 days of the alleged occurrence. 7 NYCRR § 701.7[a]. The I.G.R.C. is a five-member body consisting of two voting inmates, two voting staff members, and a non-voting chair. 7 NYCRR § 701.4. Next, a party to the grievance may appeal to the superintendent within four working days after receipt of the I.G.R.C.'s written response. As a general rule, the superintendent or his designee must issue a decision within ten working days of receipt of the appeal. 7 NYCRR § 701.7[b]. Then, a party to a grievance may appeal the superintendent's action to the C.O.R.C., which consists of the deputy commissioners or their designees. 7 NYCRR § 701.6.
In this case, it appears that Thomas has failed to exhaust his administrative remedies concerning the grievance he filed in December of 1996. The defendants have provided this court with documents which show that Thomas filed a grievance on December 11, 1996, claiming that he did not receive proper treatment for his hernia and blood clots. He appealed the determination of the I.G.R.C. to the superintendent, but did not appeal the determination of the superintendent's designee to the C.O.R.C. As such, this court finds that Thomas has failed to exhaust his administrative remedies. Accordingly, this court recommends that the complaint be dismissed for failure to exhaust.
D. Statute of Limitations
The defendants contend that the case is barred by statute of limitations. There is no federal statute of limitations for § 1983 actions. The federal court must "borrow" the limitations period from the most appropriate or analogous statute. See Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440 (1980). New York's three-year period for personal injury applies to § 1983 actions. Owens v. Okure, 488 U.S. 235, 251, 109 S.Ct. 573, 582, 102 L.Ed.2d 594 (1989) (holding that New York's three-year statute of limitations for general personal injury actions applies to constitutional tort claims under § 1983). However, the date of accrual of a § 1983 claim is governed by federal law. Morse v. University of Vermont, 973 F.2d 122, 125 (2d Cir. 1992). Claims accrue when the plaintiff "knows or has reason to know of the injury which is the basis of his action." Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980).
In this case, Thomas alleges that the defendants failed to provide medical treatment between March of 1996 and January of 1997. The defendants maintain that since his injury occurred in March of 1996, the statute of limitations has expired. They contend that Thomas filed his complaint three years and ten months after the last date that the alleged incident occurred.
This court disagrees and finds that Thomas filed his suit within the statute of limitations. In analyzing the facts in the light most favorable to the non-moving party, Thomas could argue that his injury did not accrue until January of 1997, and that his suit would not be time barred. Thomas could argue that under the "continuous harm" rule he did not know or have reason to know of the injury which is the basis of his action until January of 1997 when he was diagnosed with cancer. "While no decision within this circuit has been found in which [the continuous harm] rule was applied to toll the statute of limitations for a deliberate indifference claim, the Second Circuit has recognized that the rule may apply in such a case." Cole v. Miraflor, 2001 U.S. Dist. LEXIS 1681, at *17 (S.D.N.Y. Feb. 21, 2001) (citing Pino v. Ryan, 49 F.3d 51, 54 (N.D.N.Y. 1995)) (affirming sua sponte dismissal of prisoner's deliberate indifference claim "where . . . the injuries complained of occurred . . . well outside the applicable three-year limitations period . . . and plaintiff has alleged no facts indicating a continuous or ongoing violation of his constitutional rights"). Since Thomas' claims against the defendants could have accrued as late as January of 1997, dismissal based on this ground is not recommended.
E. Eighth Amendment Claim
The defendants contend that Thomas has failed to state an Eighth Amendment claim. The Eighth Amendment does not mandate comfortable prisons, yet it does not tolerate inhumane prisons either, and the conditions of an inmate's confinement are subject to examination under the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1975, 128 L.Ed.2d 811 (1994). Nevertheless, deprivations suffered by inmates as a result of their incarceration only become reprehensible to the Eighth Amendment when they deny the minimal civilized measure of life's necessities. Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)).
Moreover, the Eighth Amendment embodies "broad and idealistic concepts of dignity, civilized standards, humanity, and decency . . ." against which penal measures must be evaluated. See Estelle v. Gamble, 429 U.S. at 102, 97 S.Ct. at 290. Repugnant to the Amendment are punishments hostile to the standards of decency that "'mark the progress of a maturing society.'" Id. (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958). Also repugnant to the Amendment, are punishments that involve "'unnecessary and wanton inflictions of pain.'" Id. at 103, 97 S.Ct. at 290 (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)).
In light of these elementary principles, a state has a constitutional obligation to provide inmates adequate medical care. See West v. Atkins, 487 U.S. 42, 54, 108 S.Ct. 2250, 2258, 101 L.Ed.2d 40 (1988). By virtue of their incarceration, inmates are utterly dependant upon prison authorities to treat their medical ills and are wholly powerless to help themselves if the state languishes in its obligation. See Estelle, 429 U.S. at 103, 97 S.Ct. at 290. The essence of an improper medical treatment claim lies in proof of "deliberate indifference to serious medical needs." Id. at 104, 97 S.Ct. at 291. Deliberate indifference may be manifested by a prison doctor's response to an inmate's needs. Id. It may also be shown by a corrections officer denying or delaying an inmate's access to medical care or by intentionally interfering with an inmate's treatment. Id. at 104-105, 97 S.Ct. at 291.
The standard of deliberate indifference includes both subjective and objective components. The objective component requires the alleged deprivation to be sufficiently serious, while the subjective component requires the defendant to act with a sufficiently culpable state of mind. See Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). A prison official acts with deliberate indifference when he "'knows of and disregards an excessive risk to inmate health or safety.'" Id. (quoting Farmer, 511 U.S. at 837, 114 S.Ct. at 1979). "'The 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.'" Id. However, an Eighth Amendment claim may be dismissed if there is no evidence that a defendant acted with deliberate indifference to a serious medical need. An inmate does not have a right to the treatment of his choice. See Murphy v. Grabo, 1998 WL 166840, at *4 (N.D.N.Y. April 9, 1998) (citation omitted).
Also, mere disagreement with the prescribed course of treatment does not always rise to the level of a constitutional claim. See Chance, 143 F.3d at 703. Moreover, prison officials have broad discretion to determine the nature and character of medical treatment which is provided to inmates. See Murphy, 1998 WL 166840, at *4 (citation omitted).
While there is no exact definition of a "serious medical condition" in this circuit, the Second Circuit has indicated what injuries and medical conditions are serious enough to implicate the Eighth Amendment. See Chance, 143 F.3d at 702-703. In Chance, the Second Circuit held that an inmate complaining of a dental condition stated a serious medical need by showing that he suffered from great pain for six months. The inmate was also unable to chew food and lost several teeth. The Circuit also recognized that dental conditions, along with medical conditions, can vary in severity and may not all be severe. Id. at 702. The court acknowledged that while some injuries are not serious enough to violate a constitutional right, other very similar injuries can violate a constitutional right under different factual circumstances. Id.
The Second Circuit provided some of the factors to be considered when determining if a serious medical condition exists. Id. at 702-703. Factors that the court mentioned were "'[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain'" are highly relevant. Id. at 702-703 (citation omitted).
In this case, Thomas claims that the defendants did not take any steps to correct his medical problems, they refused to get close enough to examine him, and they did not provide him any medical treatment. For purposes of this motion, the defendants concede that Thomas had a serious medical need. They dispute the allegation that they did not provide medical treatment or that they were deliberately indifferent to his medical needs.
The defendants maintain that various references in the record show that they did provide adequate medical care. For instance, Lee treated Thomas on April 30, June 4, November 13, 1996, and on January 9 and 13, 1997. Lee ordered various medical tests and issued a variety of medications to alleviate Thomas' discomfort. He also reviewed Thomas' chart including lab results. Lee ordered medications and referred him to a nephrology specialist. Moreover, the nephrologist recommended a course of treatment which Lee had already prescribed.
In addition, during the same time period, Wright and Carbone provided medical care for Thomas. They ordered medical tests, prescribed courses of treatments, and monitored his laboratory and radiological reports. The defendants maintain that within days of discovering that his hemoglobin and hematocrit levels were low, the medical staff had Thomas admitted to the Albany Medical Center Hospital for treatment. Lastly, the defendants contend that since Lee was not present during the surgeries at the Albany Medical Center, Thomas cannot show that Lee was responsible for any of the physical damage and pain that he suffered as a result of the surgeries in February of 1997.
This court finds that the record clearly shows that the defendants were not deliberately indifferent to Thomas' serious medical needs. Although they may have failed to diagnose or even detect his cancer, the record does not show that they did so deliberately. Furthermore, the record does not show that they disregarded his medical needs. He was seen numerous times and given various medications to alleviate his pain and suffering. Despite not diagnosing him properly, the defendants repeatedly ordered tests and continued to get normal results from the tests they ordered. Accordingly, as an additional ground to grant dismissal, this court recommends that the defendants' motion for summary judgment should be granted.
F. Other Defenses
The defendants contend that they were also entitled to dismissal for lack of personal involvement. Regardless of the merits of this defense, the court has already determined that all of Thomas' claims should be dismissed on other grounds. Consequently, the court need not address the defendants' other defenses and declines to do so.
WHEREFORE, for the foregoing reasons, it is hereby
RECOMMENDED, that the defendants' motion for summary judgment (Dkt. No. 22) be GRANTED since the suit attempts to sue the defendants in their official capacities and the Eleventh Amendment bars such claims; and it is further
RECOMMENDED, that the defendants' motion for summary judgment (Dkt. No. 22) be GRANTED since Thomas has failed to show that the defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment; and it is further
RECOMMENDED, that the defendants' motion for summary judgment (Dkt. No. 22) be GRANTED since Thomas failed to exhaust his administrative remedies; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation upon the parties by regular mail.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).