MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION

LAURA TAYLOR SWAIN, United States District Judge

On August 27, 2002, Magistrate Judge Henry Pitman issued a Report and Recommendation ("Report") recommending that the Court grant the Defendants' motion for summary judgment. No objections to the Report have been filed.

In reviewing a report and recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C) (West 2002). To accept the report and recommendation of a magistrate judge to which no timely objection has been made, a district court "'need only satisfy itself that there is no clear error on the record.'" Johnson v. Reno, 143 F. Supp.2d 389, 391 (S.D.N.Y. 2001) (citation omitted). See also Bryant v. New York State Dep't of Corr. Serv., 146 F. Supp.2d 422, 424-25 (S.D.N.Y. 2001) (court may accept those portions of report to which no written objection has been made, so long as they are "not facially erroneous").

The Court has reviewed thoroughly Magistrate Judge Pitman's well-reasoned Report and has determined that there is no clear error on the face of the record. The Court adopts the Report for the reasons stated therein. Accordingly, Defendants' motion for summary judgment is granted.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).

Magistrate Judge Pitman's Report follows.

SO ORDERED.

PITMAN, United States Magistrate Judge:

TO THE HONORABLE LAURA TAYLOR SWAIN, United States District Judge,

I. Introduction

Plaintiff pro se, an incarcerated inmate in the custody of the New York State Department of Correctional Services, brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants failed to provide him with adequate medical treatment for severe lower back pain, causing him to suffer pain and numbness in his left leg and to have difficulty sleeping.

In a report and recommendation dated March 2, 2001, I recommended that (1) the complaint be dismissed in its entirety to the extent that it could be construed to assert claims against the defendants in their official capacities; (2) the complaint be dismissed to the extent it asserts state law claims against the defendants; (3) the complaint be dismissed in its entirety as to defendant Artuz; (4) plaintiff's claim of deliberate indifference be dismissed against Rodas, and (5) defendants' motion to dismiss as to defendants Dr. Mamis, Dr. Selwin and Mr. Zwillinger be denied. That report and recommendation was subsequently adopted by the Honorable Laura Taylor Swain on July 25, 2001.

The three remaining defendants — Dr. Mamis, Dr. Selwin and Mr. Zwillinger — now move for summary judgment arguing that (1) there is no evidence in the record that is sufficient to create a genuine issue of fact that they were deliberately indifferent to plaintiff's back problems and (2) they are entitled to qualified immunity. For the reasons set forth below, I respectfully recommend that their motion be granted.

II. Facts

The record in this case establishes the following facts.

The events giving rise to this action began on February 2, 1997. At that time, plaintiff was working as a porter at Green Haven Correctional Facility (Exhibit A to the Declaration of Assistant Attorney General Melinda Chester-Spitzer, dated December 20, 2001 ("Chester-Spitzer Dec."), at 41). After mopping an area, plaintiff claims that he bent over to pick up a bucket of water and that as he was lifting the bucket he felt a sharp pain in his lower back (Chester-Spitzer Dec., Ex. A at 45-47). Plaintiff states that after the incident, he laid down on his bunk for a while, and that when he later got up, he could not stand up straight (Chester-Spitzer Dec., Ex. A at 46).

On the day after the claimed incident, plaintiff consulted with a nurse at the prison infirmary and was told to apply warm compresses to the affected area. Plaintiff testified that he complied with this direction but that the treatment was ineffective (Chester-Spitzer Dec., Ex. A at 49, Ex. D at D 131).

Since the treatment prescribed by the nurse did not provide any relief, plaintiff met with Dr. Harry Mamis, a staff physician at Green Haven, on or about February 10, 1997 (Chester-Spitzer Dec., Ex. A at 50, Ex. C 6, Ex. D at D 131). Dr. Mamis performed a physical examination of plaintiff and concluded that plaintiff suffered a "lumbar strain or sprain," a condition which can cause significant discomfort, but does not endanger a patient's health or safety (Chester-Spitzer Dec., Ex. C 7, Ex. D at D 131). In addition to directing plaintiff to return for a follow-up visit, Dr. Mamis prescribed anti-inflammatory pain medication and Percoset, a muscle relaxant. Dr. Mamis also issued a nine-day "no work" permit, as well as permission for plaintiff to receive his meals in his cell so that he would not have to walk to the mess hall (Chester-Spitzer Dec., Ex. A at 50-52, Ex. C 9). When plaintiff subsequently had an allergic reaction to the Percoset, Dr. Mamis discontinued the Percoset and instead prescribed Naprosyn and Flexaril; plaintiff claimed that neither medication was effective at reducing his pain (Chester-Spitzer Dec., Ex. A at 50-52, Ex. D at D 131).

Over the following months, Dr. Mamis continued to treat plaintiff for his complaints of back pain. Plaintiff's medical records indicate that he saw Dr. Mamis on February 10, 13, 17, 18, 26 and April 3, 1997 (Chester-Spitzer Dec., Ex. D at D 124, 128-31). Dr. Mamis issued plaintiff several permits that allowed him to receive meals in his cell and provided plaintiff with a back brace (Chester-Spitzer Dec., Ex. C 10). Dr. Mamis also referred plaintiff to Dr. Shreedahanan, an "outside" musculoskeletal specialist (Chester-Spitzer Dec., Ex. a at 53).

Dr. Shreedahanan ordered X-Rays of plaintiff's back in March 1997; the radiologist's report concerning those X-rays stated:

Radiographic examination of the dorsal spine shows normal vertebral body alignment and curvature. The bodies, arches, and pedicles are intact and the intervertebral disc spaces are well maintained. No compression fractures, bone destruction or significant arthritic changes are seen.

(Chester-Spitzer Dec. Ex. D at D 127). Plaintiff also received physical therapy twice a week during the spring of 1997 (Chester-Spitzer Dec., Ex. A at 55).

Plaintiff complained to the medical staff at Green Haven that none of the foregoing treatments had relieved his pain, and Dr. Mamis arranged for plaintiff to undergo a Magnetic Resonance Imaging ("MRI") on July 14, 1997 (Chester-Spitzer Dec., Ex. C 11). The report of the MRI testing revealed no abnormalities that could account for plaintiff's pain:

Examination MRI of lumbar spine performed in axial and sagittal imaging planes was performed. The study was performed utilizing multiple imaging sequences. The examination demonstrated that the lumbar vertebral bodies were of normal size. The intervertebral disc spaces are well maintained. There is no evidence of disc herniation or protrusion. The visualized portions of the conus medularis and the cauda equina were unremarkable. The neural foramina were patent.

CONCLUSION: UNREMARKABLE EXAMINATION.

(Chester-Spitzer Dec., Ex. D at D 287).

Plaintiff continued to complain of pain during the latter half of 1997, and Dr. Mamis continued to prescribe physical therapy at the rate of two to three sessions per week (Chester-Spitzer Dec., Ex. C 12, Ex. D at D 103-09). Since plaintiff was continuing to complain of severe pain, Dr. Mamis ordered an electromyogram study ("EMG") of plaintiff in December 1997 (Chester-Spitzer Dec., Ex. C 12). The results of the EMG were "normal study" with "no electrical evidence of radiculopathy or neuropathy," i.e., no nerve damage (Chester-Spitzer Dec., Ex. C 12, Ex. D at D 283).

In January 1998, plaintiff fell while descending some stairs at Green Haven (Chester-Spitzer Dec., Ex. A at 77-78). He was taken to the infirmary the following day where he was seen by Dr. Selwin (Chester-Spitzer Dec., Ex. A at 84-86). This was the only instance that Dr. Selwin saw plaintiff professionally (Chester-Spitzer Dec., Ex. E 10). Dr. Selwin examined plaintiff's neck, provided him with a cervical collar, prescribed Ultram and Flexaril and admitted plaintiff to the infirmary for a twenty-four hour observation period (Chester-Spitzer Dec., Ex. A at 87, Ex. E 11). Plaintiff was discharged the following day after admitting to Dr. Selwin that he was "moving around better" (Chester-Spitzer Dec., Ex. D at D 98).

In January 1998, despite a course of treatment that included physical therapy sessions, application of moist heat, ultrasound massages and back exercises, plaintiff was still complaining of severe back pain (Chester-Spitzer Dec., Ex. C 15). As part of his continuing effort to solve the problem, Dr. Mamis then arranged for plaintiff to be seen by Dr. Jonathan Moldover, an outside specialist in pain management and the former Chief Physiatrist at Green Haven (Chester-Spitzer Dec., Ex. C 15, Ex. D at D 281).

Shortly before Dr. Moldover actually examined plaintiff, Dr. Mamis ordered another set of X-rays, this time of plaintiff's pelvic area (Chester-Spitzer Dec., Ex. C 16). The radiologist's report concerning these X-rays states:

Radiographic examination of the pelvis shows no fracture, dislocation, or any other bone or joint abnormality.

Normal pelvis.

Exam sacrum in 2 views shows normal alignment and curvature. There is no fracture or other osseous abnormality. The L5-S1 disc space is narrowed. IMP: NO ABNORMALITY SACRUM. NARROWED L5-S1 DISC SPACE COULD INDICATE DEGENERATIVE DISCOGENIC CHANGE AT LUMBOSACRAL JUNCTION. NO PRIOR STUDY.

(Chester-Spitzer Dec., Ex. D at D 92).

In March 1998, plaintiff complained of problems sleeping due to pain, and Dr. Mamis prescribed Elavil to address the problem (Chester-Spitzer Dec., Ex. C 14).

Dr. Moldover examined plaintiff on or about March 27, 1998. Dr. Moldover recommended that plaintiff continue to be prescribed Elavil, Motrin and Ultram, that plaintiff practice flexion exercises and that plaintiff be provided with a cane (Chester-Spitzer Dec., Ex. C 17, Ex. D at D 281).

In April 1998, plaintiff requested a wheelchair, claiming that he was in too much pain to walk (Chester-Spitzer Dec., Ex. C 18). After consulting with Drs. Moldover and Selwin, Dr. Mamis denied plaintiff's request, in large part on the recommendation of Dr. Moldover. Dr. Moldover believed, and Dr. Mamis concurred, that if plaintiff were given a wheelchair and stopped moving under his own power, his condition would actually worsen (Chester-Spitzer Dec., Ex. C 19).

On April 15, 1998, plaintiff saw Dr. Mamis again. Prior to that date, plaintiff had been moved off an "Honor Block" in order to be relocated to housing that would not require him to climb stairs (see Chester-Spitzer Dec., Ex. D at D 88). One of the consequences of the move was that plaintiff's new housing had a "spring bed" instead of a flat steel bed; the spring bed aggravated plaintiff's back condition (Complaint at 10, para. 1). When Dr. Mamis first learned of this change during the April 15 visit, he ordered that plaintiff be provided with a flat steel bed (Chester-Spitzer Dec., Ex. C ¶¶ 31-32). In addition, Dr. Mamis's notes for the April 15, 1998 visit record that plaintiff "states he is slowly improving, doing exercises prescribed by Dr. Moldover" (Chester-Spitzer Dec., Ex. D at D 87).

Although Dr. Mamis ordered that plaintiff be provided with a flat steel bed in April 1998, his order was not implemented by Green Haven's Movement and Control Unit until August 1998 (Chester-Spitzer Dec., Ex. A at 120, Ex. C ¶¶ 32-33). Dr. Mamis has stated that he has no control over the implementation of his orders by the Movement and Control Unit (Chester-Spitzer Dec., Ex. C 33); petitioner has submitted no evidence to the contrary.

Dr. Moldover saw plaintiff again on May 11, 1998 and recommended that plaintiff receive facet injections (Chester-Spitzer Dec., Ex. C 21, Ex. D at D 277). Facet injection treatment is designed to reduce inflammation in the spine and consists of injecting anti-inflammatory steroidal medication into the area surrounding the spine. Dr. Moldover recommended this course of treatment because none of the other treatments plaintiff had undergone had been successful (Chester-Spitzer Dec., Ex. C 21). Dr. Mamis also consulted with another physician, Dr. Galeno, who concurred in the recommendation that plaintiff be given facet injections (Chester-Spitzer Dec., Ex. C 22).

Although facet injections were ordered in May, 1998, plaintiff did not actually receive the injections until April, 1999 (Chester-Spitzer Dec., Ex. C ¶¶ 21, 29). According to Dr. Mamis, whose statements have not been contradicted by Plaintiff, he submitted a request to Westchester County Medical Center ("WCMC") on June 1, 1998, requesting that they schedule facet injection treatment for plaintiff (Chester-Spitzer Dec., Ex. C 22). WCMC authorized the request on July 15, 1998, but because the treatment was deemed to be "non-urgent," WCMC could not provide a date for an initial consultation prior to October 15, 1998. Dr. Mamis scheduled an initial consultation for plaintiff at WCMC for October 31, 1998 (Chester-Spitzer Dec., Ex. C 22).

In light of the long delay, and in an effort to take steps to alleviate plaintiff's discomfort, Dr. Mamis authorized a wheelchair for plaintiff in October 1998 (Chester-Spitzer Dec., Ex. D at D 74-75). Plaintiff used the wheelchair until June, 2000, at which point he returned it stating that he no longer needed it (Chester-Spitzer Dec., Ex. C 23).

Plaintiff was transported to WCMC on October 31, 1998 for an initial consultation (Chester-Spitzer Dec., Ex. C 24).

In early November 1998, Dr. Mamis submitted a second request for a consultation to an entity called Correctional Physicians Service ("CPS"), which appears to be an health management organization that had been newly retained by the Department of Correctional Services.

CPS advised Dr. Mamis that the procedure would take place at St. Agnes Hospital Pain Clinic ("St. Agnes") in White Plains and that the first available appointment was not until February 24, 1999.

In addition, Dr. Mamis was advised that another "initial consultation" would be required before the treatments could be administered (Chester-Spitzer Dec., Ex. C 25). Dr. Mamis had no control over when CPS scheduled the treatment (Chester-Spitzer Dec., Ex. C 26).

In an effort to ameliorate plaintiff's pain, Dr. Mamis issued an order in January 1999 permitting plaintiff to have his meals in his cell block, and an additional order in February 1999 permitting plaintiff to have a double mattress (Chester-Spitzer Dec., Ex. C 26).

On February 24, 1999, plaintiff was transported to St. Agnes for a second "initial" consultation, and was evaluated for facet injection treatment. Plaintiff was also advised by staff members of St. Agnes that he would have to undergo a series of blood tests (Chester-Spitzer Dec., Ex. C 27). Plaintiff's blood tests were completed on March 12, 1999, and staff members at St. Agnes scheduled plaintiff's first treatment for March 24, 1999 (Chester-Spitzer Dec., Ex. C 28).

Due to a scheduling conflict on the part of St. Agnes, plaintiff's appointment was rescheduled for April 29, 1999 (Chester-Spitzer Dec., Ex. C 28). Plaintiff subsequently received facet injection treatments on April 29 and May 24, 1999 (Chester-Spitzer Dec., Ex. C 29). The facet injection treatments temporarily relieved plaintiff's pain (Chester-Spitzer Dec., Ex. A at 123, Ex. C 30).

Accordingly, Dr. Mamis subsequently ordered additional physical therapy and additional steroidal injections for plaintiff (Chester-Spitzer Dec., Ex. C 30).

On March 8, 2000, Dr. Mamis ordered another MRI study of plaintiff's spine (Chester-Spitzer Dec., Ex. C 37, Ex. D at D 257). The report of this procedure states:

[A] normal alignment is demonstrated. No compression fractures are identified. The vertebral bodies are of normal height and signal intensity throughout. The intervertebral discs are of normal height and signal intensity throughout. Bulging of the disc margin at the L4-5 level is noted. There is no evidence of spinal stenosis. The spinal cord ends normally at the L1 level and is of normal signal intensity. The soft tissues are unremarkable. IMPRESSION: Bulging disc L4-5.

(Chester-Spitzer Dec., Ex. D at D 256).

In August 2001, plaintiff was transferred out of Green Haven (Chester-Spitzer Dec., Ex. C 36).

B. Proceedings to Date

Plaintiff commenced this action on January 10, 2000. On or about May 15, 2000, defendants moved to dismiss the complaint on various grounds, and on March 2, 2001, I issued a report and recommendation recommending the dismissal of all claims against all defendants except for plaintiff's deliberate indifference claims against Dr. Mamis, Dr. Selwin and Mr. Zwillinger. That report and recommendation was accepted by the Honorable Laura Taylor Swain, United States District Judge, on July 25, 2001. Thus, the pending motion addresses the only claims remaining in this matter.

III. Analysis

a. Summary Judgment Standard

The standards applicable to a motion for summary judgment are well-settled and require only brief review.

To prevail on a motion for summary judgment, the moving party must show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). In deciding such a motion, the district court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Giano v. Senkowski, 54 F.3d 1050, 1052 (2d Cir. 1995).

Hemphill v. Schott, 141 F.3d 412, 415 (2d Cir. 1998). See also Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000); Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999); Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998); Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir. 1997).

Once the moving party has met its initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party, in order to defeat the motion, "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party "must set forth specific facts showing that there is a genuine issue for trial" in order to avoid summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

B. Deliberate Indifference Claim

The Supreme Court set forth the standard for deliberate indifference claims in Estelle v. Gamble, 429 U.S. 97, 104 (1976): "[D]eliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain,' . . . proscribed by the Eighth Amendment." See also Helling v. McKinney, 509 U.S. 25, 31-32 (1993); LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998) (a plaintiff has to establish that the "defendants knew of the health dangers and yet refused to remedy the situation"). "Proof of mere negligence . . . will not give rise to a constitutional violation." Doyle v. Coombe, 976 F. Supp. 183, 186 (W.D.N.Y. 1997), aff'd without opinion, 159 F.3d 1346 (2d Cir. 1998). See also Hendricks v. Coughlin, 942 F.2d 109, 113 (2d Cir. 1991).

A claim of deliberate indifference involves an objective component and a subjective component. Farmer v. Brennan, 511 U.S. 825, 834-35 (1994); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998); Hemmings v. Gorczyk, 134 F.3d 104, 108-09 (2d Cir. 1998). See generally Garraway v. Artuz, 01 Civ. 3126 (DLC), 2002 WL 221584 at *6-*7 (S.D.N.Y. Feb. 13, 2002).

The objective component is satisfied if the alleged deprivation is "sufficiently serious." Farmer v. Brennan, supra, 511 U.S. at 834; Hudson v. McMillian, 503 U.S. 1, 9 (1992) ("Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are serious.") (internal quotation marks omitted). A medical condition is considered serious if it is "a condition of urgency" that may result in "degeneration" or "extreme pain." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). See also Thomas v. Arevalo, 95 Civ. 4704 (SS), 1998 WL 427623 at *5 (S.D.N.Y. July 28, 1998).

The subjective component of a deliberate indifference claim is satisfied where a plaintiff can show that the defendants acted with "a sufficiently culpable state of mind." Farmer v. Brennan, supra, 511 U.S. at 834-35. An official acts with deliberate indifference when that official "knows of and disregards an excessive risk to inmate health or safety; the official must be both 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." 511 U.S. at 837. See also Wilson v. Seiter, 501 U.S. 294, 298-302 (1991); Morales v. Mackalm, 278 F.3d 126, 132-33 (2d Cir. 2002); Hathaway v. Coughlin, supra, 37 F.3d at 66. "The subjective element requires a state of mind that is the equivalent of criminal recklessness. . . ." Hathaway v. Coughlin, supra, 99 F.3d at 553. "In certain instances, a physician may be deliberately indifferent if he or she consciously chooses 'an easier and less efficacious' treatment plan." Chance v. Armstrong, supra, 143 F.3d at 703. "'"[M]ere medical malpractice" is not tantamount to deliberate indifference,' but it may rise to the level of deliberate indifference when it 'involves culpable recklessness, i.e., an act or a failure to act . . . that evinces "a conscious disregard of a substantial risk of serious harm."'" Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000), quoting Chance v. Armstrong, supra, 143 F.3d at 703.

The Eighth Amendment does not require prison officials to provide every form of treatment that is theoretically possible or every form of treatment that would be available to an individual who is not incarcerated. See Hudson v. McMillian, supra, 503 U.S. at 9.

"At a minimum, there must be at least some allegations of a conscious or callous indifference to a prisoner's rights." Zaire v. Dalsheim, 698 F. Supp. 57, 59, aff'd, 904 F.2d 33 (2d Cir. 1990). Claims based on differences of opinion, however, are not sufficient to constitute "conscious or callous indifference." Williams v. Coughlin, 650 F. Supp. 955, 956 (S.D.N.Y. 1987). Medical decisions will constitute "indifference" only when they are contrary to accepted medical standards. Harding [v. Kuhlmann, 588 F. Supp. 1315, 1316 (S.D.N.Y. 1984), aff'd, 762 F.2d 990 (2d Cir. 1985)].

Webb v. Jackson, 92 Civ. 2149 (SS), 1994 WL 86390 at *2 (S.D.N.Y. Mar. 16, 1994), aff'd without opinion, 47 F.3d 1158 (2d Cir. 1995). See also Youngberg v. Romeo, 457 U.S. 307, 323 (1982) (civilly committed patient states a claim for liability under Section 1983 "only when the decision by the [medical] professional is such a substantial departure from accepted professional judgment, practice or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment").

For purposes of the present motion, defendants assume that plaintiff has asserted a "serious" medical condition (Defendants' Memorandum of Law, dated December 20, 2001 ("Defendants' Mem."), at 12). Nevertheless, defendants claim that there is insufficient evidence for a reasonable jury to conclude that the subjective component of a deliberate indifference claim has been satisfied and that they are, therefore, entitled to summary judgment.

Judged by the standards set forth above, I conclude that plaintiff's claim of deliberate indifference cannot withstand summary judgment.

1. Dr. Mamis

Dr. Mamis was plaintiff's primary care physician at Green Haven from the time of February 1997 through plaintiff's transfer from Green Haven (Chester-Spitzer Dec., Ex. C 5).

Although the handwritten medical records submitted in support of the current motion are, at times, difficult to read, it appears that Dr. Mamis, or members of his staff, saw plaintiff concerning his back pain over 150 times from the date of the accident through the date on which this accident was commenced (Chester-Spitzer Dec., Ex. D at D 34 — D 131). In addition to the specific incidents described in Section II, above, plaintiff's medical records indicate that Dr. Mamis renewed plaintiff's prescriptions on an ongoing basis, and issued multiple orders permitting plaintiff to receive meals in his cell and use a cane and a wheelchair.

In addition, there is unrebutted evidence in the record that Dr. Mamis's treatment of plaintiff was appropriate to plaintiff's complaints. Defendants have submitted an affidavit from Dr. Arnold M. Illman, a Board certified orthopedist and Associate Clinical Professor of Orthopedic Surgery at Stony Brook Medical School with over thirty years of experience treating back problems in both private practice and with the United States Air Force (Chester-Spitzer Dec., Ex. I at 3). Dr. Illman has reviewed plaintiff's medical records and concluded as follows:

I feel that this patient probably sprained his lower back on February 2, 1997 and that the minimal changes of a pre-existing problem of his lower back with diminution of the interspace of L5-S1 probably was not significant.

This patient was seen by either the physician, physician's assistant or physical therap[ist], or [an] individual giving out pain medication a total of approximately 220 times over the period of March 1997 through March 10, 2001 and has ample opportunity to be re-examined and treated and in fact was over this period of time.

All of [plaintiff's] physicians during this period of time diligently and completely had performed all possible pertinent tests in an attempt to treat this individual's complaints and in fact repeated the MRI in order not to leave anything to chance.

I feel this patient was given a very careful, considerate pain management treatment in order to alleviate his pain despite the fact that all his tests were normal. In fact, in order to comply [with] this claimant's symptomatology, which was symptomatic, which was subjective and not borne out by objective medical tests, he was given light duty excuses and the use of a wheelchair. Therefore I feel that in no way were the allegations made by this claimant against the doctors and other medical personnel treating him and the institution reasonable.

(Chester-Spitzer Dec., Ex. I at 2).

Against this array of evidence, plaintiff makes four specific complaints. First, plaintiff complains about the fact that the treatments did not successfully cure his pain. Although I assume this claim to be true, it cannot support a finding of deliberate indifference. The fact that a course of treatment is unsuccessful does not even establish medical malpractice. 1A New York Pattern Jury Instructions — Civil, Instruction 2-150 at 723-24 (3rd Ed. 2002). A fortiori, it cannot support a finding of deliberate indifference since deliberate indifference requires a level of culpability beyond malpractice. Moreover, when plaintiff was asked at his deposition to identify any form of treatment that he believes was improperly denied to him, he could not identify any such treatment (Chester-Spitzer Dec., Ex. A at 128-29).

Plaintiff also complains that he believed Dr. Mamis was not empathetic and did not release him from work (Chester-Spitzer Dec., Ex. A at 56-57). As to the former complaint, the Eighth Amendment does not require empathy. If prison officials provide the level of care the Eighth Amendment requires, their alleged lack of empathy is immaterial. As to the alleged failure to release plaintiff from work, plaintiff has no evidence that any physician told him that he should not have been working (Chester-Spitzer Dec., Ex. A at 112-13). Moreover, after his accident, plaintiff admits that his work assignments did not include arduous physical labor (Chester-Spitzer Dec., Ex. A at 111 (drafting and working with mentally ill inmates).

To the extent plaintiff complains of delays in his being given a flat steel bed and delays on receiving facet injections, Dr. Mamis has offered uncontradicted evidence that he did all in his power to provide plaintiff with both, and plaintiff has offered no evidence to the contrary. In the absence of some evidence that Dr. Mamis was responsible for the delay, there is no evidence that Dr. Mamis was responsible for a substantial departure from accepted medical standards. In addition, delay in providing non-critical care, in the absence of evidence that the delay was the product of wantonness or other improper motive, will rarely sustain a deliberate indifference claim.

Although a delay in providing necessary medical care may, in some cases, support an inference of deliberate indifference, the Second Circuit has reserved such a classification for cases in which, for example, officials ignored a "life-threatening and fast-degenerating" condition for three days, Liscio, 901 F.2d at 277, or delayed major surgery for over two years, Hathaway v. Coughlin, 841 F.2d 48 (1988) . . .; see also Archer v. Dutcher, 733 F.2d 14, 16-17 (2d Cir. 1984) (a prisoner must allege that he was intentionally denied needed medical are over a period of time by prison officials, while he was in extreme pain, or that medical care was completely withheld).

Sully-Martinez v. Glover, 00 Civ. 5997 (GEL), 2001 WL 1491278 at *5 (S.D.N.Y. Nov. 26, 2001).

Finally, to the extent plaintiff bases his claim on his being denied a wheelchair in April, 1998, Dr. Mamis explained in his affidavit that this decision was based on his opinion, shared by both Drs. Mamis, Moldover and Selwin, that plaintiff's use of a wheelchair would actually aggravate his condition. Again, there is simply no evidence that this decision was incorrect, let alone reached the level of culpability sufficient to constitute deliberate indifference.

In view of the ample evidence that Dr. Mamis provided plaintiff with a substantial amount of care appropriate to plaintiff's condition and the total dearth of evidence that Dr. Mamis departed from accepted medical standards to any degree, I conclude that no reasonable juror could conclude that Dr. Mamis is guilty of deliberate indifference.

2. Dr. Selwin

Dr. Selwin was Green Haven's Acting Medical Director from 1995 through February 1999, and, in that capacity, was responsible for overseeing the doctors and physician's assistants assigned to the facility and the x-ray, physical therapy, laboratory and pharmacy departments (Chester-Spitzer Dec., Ex. E ¶¶ 3, 5). The record reveals that Dr. Selwin's only clinical contact with plaintiff was the examination and treatment Dr. Selwin rendered to plaintiff after his January 1998 fall (Complaint at 8; Chester-Spitzer Dec., Ex. A at 25, Ex. E ¶¶ 10-13). Plaintiff claims that during the course of this consultation, Dr. Selwin harassed him about the numerous grievance complaints that he had filed (Complaint at 8, 1; Chester-Spitzer Dec., Ex. A at 87). In addition, plaintiff wrote to Dr. Selwin, as Green Haven's Acting Medical Director, on several occasions to complain about the care that he was receiving from Dr. Mamis (Chester-Spitzer Dec., Ex. J).

To the extent plaintiff is asserting a deliberate indifference claim against Dr. Selwin based on the January 1998 visit, there is no evidence in the record establishing deliberate indifference. After the fall plaintiff suffered at that time, Dr. Selwin admitted plaintiff to the infirmary for a twenty-four hour observation period and discharged him at the end of that period, having found no abnormalities (Chester-Spitzer Dec., Ex. E ¶¶ 11-12). The entry in plaintiff's medical records concerning plaintiff's discharge indicates that plaintiff told Dr. Selwin that he was "moving around better" on the day of his discharge and that plaintiff was given both Ultram and Flexaril upon his discharge (Chester-Spitzer Dec., Ex. D at D 98). In view of the facial reasonableness of Dr. Selwin's treatment of plaintiff, the affidavit of Dr. Illman quoted above and the total absence of any evidence that Dr. Selwin's treatment constituted any type of departure from acceptable medical standards, no reasonable juror could conclude that Dr. Selwin's treatment of plaintiff in January 1998 constituted deliberate indifference.

To the extent plaintiff's allegations can be read to assert a deliberate indifference claim against Dr. Selwin based on plaintiff's letters requesting that Dr. Selwin either assign a new doctor to plaintiff or make some other changes in plaintiff's treatment (see Chester-Spitzer Dec., Ex. J), plaintiff's claim also fails. Although a supervisor's failure to take corrective action in response to a subordinate's violation of constitutional protections can, in some circumstances, be a basis for liability under Section 1983, Heron v. Dalsheim, 95 Civ. 2625 (JFK), 1999 WL 2871 at *5 (S.D.N.Y. Jan. 4, 1999) ("Courts have found personal involvement of a supervisory official where a plaintiff has sent letters to or orally informed the official of an ongoing constitutional violation." (citations omitted)); see also Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (Supervisor may be liable under Section 1983 where "the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, . . . the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or . . . the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring."), plaintiff's claim of supervisory liability cannot survive here because, as discussed above, there was no constitutional violation by Dr. Mamis. If Dr. Mamis did not violate plaintiff's constitutional rights, Dr. Selwin's failure, as his supervisor, to take corrective measures is necessarily immaterial.

Finally, to the extent plaintiff alleges that Dr. Selwin verbally abused him or harassed him for asserting grievances against Dr. Mamis, these allegations fail to state a claim on which relief can be granted. Cuoco v. Moritsugu, supra, 222 F.3d at 109; Liner v. Goord, 196 F.3d 132, 134-35 (2d Cir. 1999); Ivey v. Wilson, 832 F.2d 950, 955-56 (6th Cir. 1987); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986).

3. Lawrence Zwillinger

Since April 1991, Zwillinger has been employed by DOCS as a Regional Health Services Administrator and has been assigned by DOCS to oversee the administrative operations of the medical department at Green Haven (Chester-Spitzer Dec., Ex. G 1). Zwillinger does not himself provide any of the health care services to inmates, nor does he supervise any of the health care providers at Green Haven (Chester-Spitzer Dec., Ex. G 3). Zwillinger's only interaction with plaintiff was his drafting responses to letters plaintiff sent to Dr. Selwin and Christopher Artuz, Green Haven's Superintendent (Chester-Spitzer Dec., Ex. G 4).

The theory on which plaintiff seeks to hold Zwillinger liable is not entirely clear. In his opposition to the current motion, plaintiff claims that Zwillinger and Drs. Mamis and Selwin somehow merged together (Plaintiff's Affidavit in Support in Opposition of Summary Judgment [sic], sworn to July 10, 2002 at 23). Alternatively, plaintiff claims that Zwillinger, even though he did not supervise Drs. Mamis or Selwin, is somehow liable for not correcting their constitutionally deficient care.

With respect to the former theory, there is no legally cognizable "merger" theory under Section 1983. To the contrary, a long line of authority requires that each defendant named in a Section 1983 claim be personally involved in the commission of the constitutional violation. E.g., Monell v. Department of Soc. Servs., 436 U.S. 658, 694 n. 58 (1978); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); Leonhard v. United States, 633 F.2d 599, 621 n. 30 (2d Cir. 1980).

Plaintiff's second theory is also deficient for at least two reasons. First, as explained above, there is no evidence of any deficiency of constitutional magnitude in the care given to plaintiff. In the absence of evidence of an underlying constitutional violation, there was nothing for Zwillinger, or anybody else, to correct. Second, there is uncontradicted evidence in the record that Zwillinger, who is not a health care professional, did not supervise either Dr. Mamis or Selwin (Chester-Spitzer Dec., Ex. G 3). Thus, Zwillinger was never in a position of sufficient authority to take corrective action.

Since plaintiff has not offered any colorable legal theory on which to impose liability on Zwillinger and has not offered any evidence of any facts that could support a theory of liability, Zwillinger is also entitled to summary judgment dismissing the claims against him.

4. Summary

Plaintiff's dissatisfaction with his situation is understandable; while engaged in the ordinary act of lifting a bucket he did something to his back that has caused him serious pain for more than five years. However, any physician, whether employed by a prison or employed in the private sector, "is not an insurer of a cure nor is he a guarantor of the result of his prescriptive treatment." McGrady v. United States, 650 F. Supp. 379, 381 (D.S.C. 1986); accord Orozco v. Children's Hosp., 638 F. Supp. 280, 284 (E.D.Pa. 1986), aff'd without opinion. 813 F.2d 398 (3rd Cir. 1987); see also Harrigan v. United States, 408 F. Supp. 177, 189 (E.D.Pa. 1976) ("[a] physician is not liable merely because a course of treatment does not produce desired results; [ordinarily] a doctor is neither a warrantor of a cure nor a guarantor of the result of his treatment."). We know from personal injury litigation that sometimes pain and suffering is permanent and that medicine cannot cure all maladies. At most, plaintiff has shown that Drs. Mamis and Selwin have been unsuccessful at treating his back pain. In light of the substantial medical evidence submitted in connection with this motion that all reasonable care was provided to plaintiff, the mere lack of success does not constitute deliberate indifference. Accordingly, I conclude that Drs. Mamis and Selwin and Mr. Zwillinger are all entitled to summary judgment.

C. Qualified Immunity

Defendants next argue that they are also entitled to summary judgment on the ground of qualified immunity.

Under certain circumstances, a governmental agent who performs a discretionary function may be entitled to qualified immunity from suit for constitutional violations. The qualified immunity inquiry has two parts. "[T]he first inquiry must be whether a constitutional right would have been violated on the facts alleged; second, assuming the violation is established," the constitutional right in issue must have been "clearly established" with an adequate level of specificity. Saucier v. Katz, 533 U.S. 194, 200 (2001). Accord Caldarola v. Calabrese, Docket No. 01-9053, 2002 WL 1759778 at *3 (2d Cir. July 31, 2002); Koch v. Town of Brattleboro, 287 F.3d 162, 165-66 (2d Cir. 2002); Poe v. Leonard, 282 F.3d 123, 132-33 (2d Cir. 2002).

In order to be "clearly established," a right must be established with a level of specificity that goes beyond the statement of a "general proposition." Saucier v. Katz, supra, 533 U.S. at 201-02.

[W]e emphasized in Anderson "that the right the official is alleged to have violated must have been 'clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." [Anderson v. Creighton, 483 U.S. 635, 640 (1987)]. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. See Wilson v. Layne, 526 U.S. 603, 615 (1999) ("[A]s we explained in Anderson, the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established").

. . . If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate. See Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law").

Saucier v. Katz, supra, 533 U.S. at 202.

Although some level of specificity beyond the statement of a general proposition is required before a right is "clearly established," "'[t]his is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, . . .; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.'" Hope v. Pelzer, 122 S.Ct. 2508, 2515 (2002), quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987) (inner citations omitted).

In this case, there can be no serious issue that plaintiff has alleged the violation of a constitutional right. Ever since Estelle v. Gamble, supra, 429 U.S. 97 (1976), there has been no doubt that state prisoners have a right under the Eighth Amendment to be free from deliberate indifference to serious medical conditions.

Whether the right was "clearly established" with the level of specificity required by Saucier v. Katz, supra, 533 U.S. 194, presents a more difficult question since Saucier establishes that the mere broad statement of a "general proposition . . . is not enough" to clearly establish a right. Saucier v. Katz, supra, 533 U.S. 201-02.

Defendants here were presented with an inmate complaining of serious back pain for which X-rays, MRI and EMG studies revealed no observable, physical cause. Nevertheless, Dr. Mamis, plaintiff's principal physician, provided plaintiff with ongoing treatment, including pain medication to ameliorate plaintiff's symptoms. When Dr. Mamis found that he was unable to treat plaintiff's condition successfully, he had plaintiff seen by several outside consultants. Ultimately, plaintiff was provided with facet injections which provided only limited relief.

In Saucier, the Supreme Court stated that:

The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.

Graham does not always give a clear answer as to whether a particular application of force will be deemed excessive by the courts. This is the nature of a test which must accommodate limitless factual circumstances. This reality serves to refute respondent's claimed distinction between excessive force and other Fourth Amendment contexts; in both spheres the law must be elaborated from case to case. Qualified immunity operates in this case, then, just as it does in others, to protect officers from the sometimes "hazy border between excessive and acceptable force," Priester v. Riviera Beach, 208 F.3d 919, 926-927 (CA11 2000), and to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.

In this case, defendants provided plaintiff with a substantial amount of care which, according to the evidence in the record, was entirely appropriate. In light of Saucier, in order to defeat defendants' claim of immunity, plaintiff would have to show there was some obvious, effective, risk-free and moderately-priced treatment that defendants refused to provide to plaintiff. Even if there was some treatment defendants wrongfully failed to provide, plaintiff has not shown that that failure was so blatant that defendants' putatively illegal conduct should have been obvious to them. Even if I assume there was some diagnostic technique or modality of treatment that defendants denied to plaintiff, there is not a shred of evidence that such technique or modality was the clearly preferable and standard choice. Thus, defendants' conduct, at worst, falls into the "hazy" area between proper and improper treatment, and defendants are, therefore, protected by the doctrine of qualified immunity.

V. Objections

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from the date of this Report to file written objections. See also Fed.R.Civ.P. 6(a) and 6(e). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, United States District Judge, 40 Centre Street, Room 426, New York, New York 10007, and to the chambers of the undersigned, 500 Pearl Street, Room 750, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. FAILURE TO OBJECT WITHIN TEN (10) DAYS WILL RESULT IN a WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

Dated: New York New York August 27, 2002

Respectfully submitted,

/s/Henry Pitman _______________ HENRY PITMAN United States Magistrate