Opinion
6:17-CV-6024 EAW
2022-07-07
Eric HARDING, Plaintiff, v. Kaye CANFIELD, as Administrator of the Estate of Wesley Canfield, et al., Defendants.
Eric Harding, Brooklyn, NY, Pro Se. Heather Lynn McKay, New York State Attorney General's Office Department of Law, Rochester, NY, for Defendants Kaye Canfield, Benjamin Oakes, C. Jeavons, Carl J. Koenigsman.
Eric Harding, Brooklyn, NY, Pro Se.
Heather Lynn McKay, New York State Attorney General's Office Department of Law, Rochester, NY, for Defendants Kaye Canfield, Benjamin Oakes, C. Jeavons, Carl J. Koenigsman.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Proceeding pro se , plaintiff Eric Harding ("Plaintiff") alleges that Defendants Kaye Canfield as Administrator of the Estate of Wesley Canfield ("Dr. Canfield"), Benjamin Oakes ("PA Oakes"), C. Jeavons ("NP Jeavons"), and Carl J. Koenigsmann ("Dr. Koenigsmann") (collectively "Defendants") violated his rights under the Eighth Amendment by failing to provide him adequate medical care and treatment for hepatitis C while he was in the custody of New York Department of Corrections and Community Supervision ("DOCCS"). (Dkt. 8). Presently before the Court is Defendants’ motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. 81). Plaintiff has neither responded to the present motion nor requested an extension of time to file a response. For the following reasons, Defendants’ motion is granted.
FACTUAL BACKGROUND
This district's Local Rules of Civil Procedure require that a party moving for summary judgment file a Statement of Undisputed Facts accompanied by citations to admissible evidence or to evidence that can be presented in admissible form at trial. See L. R. Civ. P. 56(a)(1). Local Rule 56 also requires a party opposing summary judgment to file a statement admitting or contesting the moving party's Statement of Undisputed Facts and provides that an opposing party's failure to do so may render the moving party's Statement of Undisputed Facts admitted. L. R. Civ. P. 56(a)(2).
Here, Plaintiff has failed to respond to Defendants’ motion. As a result, the facts set forth below are taken from Defendants’ Statement of Undisputed Facts and the exhibits submitted in support of Defendants’ motion for summary judgment. In other words, because Plaintiff failed to submit an opposing statement of material facts, to the extent supported by admissible evidence, the factual statements contained in Defendants’ Statement of Undisputed Facts are deemed admitted for purposes of the motion. See L. R. Civ. P. 56(a)(2); see also N.Y. State Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc. , 426 F.3d 640, 648-49 (2d Cir. 2005) ("[D]istrict courts have the authority to institute local rules governing summary judgment submissions" although "[r]eliance on a party's statement of undisputed facts may not be warranted where those facts are unsupported by the record").
I. Hepatitis C
Plaintiff's claims relate to the medical treatment of his hepatitis C while incarcerated. (See Dkt. 8). Hepatitis C disease, caused by the hepatitis C virus ("HCV"), primarily affects the liver. (Dkt. 81-2 at ¶ 3). Hepatitis C infections progress slowly such that a patient is unlikely to experience severe illness in less than 20 years. (Id. at ¶ 8).
Tests can indicate the extent of a patient's liver involvement, or liver fibrosis level. (Id. at ¶ 7). Generally, a score of F0 and F1 is reliable in excluding significant liver disease, while F4 indicates cirrhosis. (Id. ). F2 and F3 indicate the presence, but not necessarily the extent, of liver fibrosis. (Id. ).
Hepatitis C can be treated, and a patient is considered cured when a non-detectable viral load of the disease is measured twelve weeks after the end of treatment. (Id. at ¶ 9). Treatment of HCV has changed over the years. (Id. at ¶ 10).
Between 2001 and 2011, the standard drug therapy for HCV was two drugs: pegylated interferon and ribavirin, referred to as "Dual Therapy." (Id. at ¶ 11). In May 2011, two new drugs were approved for treatment, telaprevir and boceprevir, either of which can be combined with Dual Therapy to form a drug regime known as "Triple Therapy." (Id. at ¶ 16). Triple Therapy has a higher success rate, but the chances of success can depend on the severity of illness and prior responses to therapy. (Id. at ¶ 17 (noting that patients with cirrhosis who have failed prior treatment have less than 50% chance of achieving a cure with Triple Therapy)).
The drugs used in both Dual and Triple Therapy pose significant side effects and health risks. For example, they can fatally worsen a patient's liver disease, or cause anemia, thyroid dysfunction, or psychiatric decompensation. (Id. at ¶¶ 12, 13, 18). Given these risks, patients need to be carefully selected for treatment, which includes a psychiatric review. (Id. at ¶ 14).
Additionally, telaprevir and boceprevir, used in Triple Therapy, increase the likelihood that a patient will develop a drug resistant form of hepatitis C. (Id. at ¶ 19). Consequently, early termination of treatment is necessary if an individual's viral load is not below 1,000 after four weeks of Triple Therapy. (Id. ; Dkt. 81-6 at ¶ 46). A higher viral load indicates the patient is not going to achieve a cure, in which case continuing Triple Therapy is not considered worth the risk. (Dkt. 81-2 at ¶ 22). This is known as the "futility rule." (Id. ).
Over time, newer drugs were developed that pose fewer risks and a higher success rate. (Id. at ¶ 29). Prior to FDA approval of these drugs, the American Association for the Study of Liver Diseases (the "AASLD") advised delaying treatment for patients with early-stage fibrosis (F0-F2) since the pace of medication developments was expected to increase rapidly. (Id. ). In late 2014, the FDA approved two such drugs: Harvoni and Viekira Pak. (Id. at ¶ 24).
II. DOCCS's Approach to Treatment of Hepatitis C
In the summer of 2011, DOCCS created practice guidelines for the treatment of hepatitis C ("DOCCS Guidelines"), overseen by Defendants’ expert, Paula Bozer, M.D. (Id. at ¶ 28). Dr. Bozer, a regional medical director at DOCCS, works with specialists and other health professionals in developing these guidelines and periodically updating them. (Id. ). The guidelines are based on community standards, including the guidelines drafted by the AASLD. (Dkt. 81-6 at ¶ 35).
The process for approval of drug therapy requires: (1) facility staff to conduct appropriate blood work, radiologic studies, and a mental health evaluation; (2) the patient to consult with an outside expert specialist, such as an infectious disease specialist, who determines eligibility and recommends a treatment plan; and (3) facility staff to prepare and send a treatment request to the Deputy Commissioner/Chief Medical Officer who reviews the request. (Dkt. 81-2 at ¶ 31).
This is consistent with the medical establishment's recommendation that only specialists and experienced practitioners prescribe and manage telaprevir and boceprevir. (Dkt. 81-2 at ¶ 26).
III. Treatment of Plaintiff's Hepatitis C
Plaintiff was diagnosed with hepatitis C in 2000. (Id. at ¶ 32). In 2004, Plaintiff was treated with Dual Therapy in the Bronx but stopped treatment either due to treatment failure or side effects. (Id. ). In 2008, he was again treated with Dual Therapy while at Rikers Island, but treatment stopped because he developed anemia. (Id. ). Treatment restarted but stopped again soon after. (Id. ). In 2010, Plaintiff underwent a liver biopsy, which indicated an F1 score. (Id. at ¶ 34).
Plaintiff was incarcerated at Southport Correctional Facility ("Southport") from May 17, 2011, to September 2014 with the exception of a temporary transfer to Great Meadows Correctional Facility from June to August 2012. (Id. at ¶¶ 36, 38). At Southport, Plaintiff was seen by Dr. Canfield and PA Oakes. Plaintiff alleges that on November 17, 2011, he wrote Dr. Canfield a letter concerning his failing health and need for treatment (see Dkt. 8-1 at 2-3), and that Dr. Canfield "responded in his normal negative demeanor" (id. at 4; see also Dkt. 8-1 at 6 ("I am not obligated to answer your letters.... Simply because the FDA has approved a medication does not mean you are entitled to it in DOCCS.")).
Around May 2012, Dr. Canfield referred Plaintiff to an outside infectious disease specialist ("IFD"). (Dkt. 81-2 at ¶ 37; Dkt. 81-4 at 8). Plaintiff saw IFD Dr. Miller on July 11, 2012, at which point Plaintiff had been transferred to Great Meadows. (Dkt. 81-2 at ¶¶ 38-39). Dr. Miller described the likelihood of Plaintiff responding to Dual Therapy as less than 5% and thus did not advise retreating Plaintiff based on the drugs’ toxicity. (Id. at ¶ 39). Dr. Miller recommended future treatment with newer drugs telaprevir and boceprevir if Plaintiff developed fibrosis stage F2 or worse. (Id. ).
In February 2013, PA Oakes referred Plaintiff to another IFD. (Id. at ¶ 40; Dkt. 81-4 at 9). On April 22, 2013, Plaintiff saw IFD Dr. Endy who estimated a response to Triple Therapy as 30-35%, and while noting that new drugs would become available the following year, found it worthwhile to attempt Triple Therapy. (Dkt. 81-4 at 9). PA Oakes ordered a fibrosis test, collected on May 9, 2013, which showed a score of F2. (Dkt. 81-2 at ¶ 43). Plaintiff received mental health clearance on June 14, 2013. (Id. at ¶ 44). PA Oakes saw Plaintiff over a month later, on July 30, 2013, and submitted a treatment request that day. (Id. at ¶ 45). Dr. Koenigsmann, DOCCS's chief medical officer, approved the request. (Id. at ¶ 46).
Beginning August 9, 2013, Plaintiff was treated with Triple Therapy. (Id. at ¶ 47). He was prescribed to take all three drugs for 12 weeks, followed by an additional period of only pegylated interferon and ribavirin. (Id. ). On September 4, 2013, Plaintiff's viral load was over 97,000, and by October 2, 2013, it had gone up to over 150,000. (Id. at ¶ 49). In late October 2013, PA Oakes consulted with regional medical director, Dr. Trabout, who confirmed that the drug therapy had to be discontinued per DOCCS Guidelines. (Id. at ¶¶ 50-51). According to PA Oakes, Plaintiff had completed all required doses of telaprevir as of that time, but the two other medications were discontinued. (Id. at ¶ 50).
Around October 31, 2013, PA Oakes reviewed Plaintiff's latest bloodwork, which showed that his viral load had dropped to 2,553 as of October 29, 2013. (Id. at ¶ 52). PA Oakes informed Dr. Trabout, and Dr. Trabout approved continuing Plaintiff's remaining treatment of pegylated interferon and ribavirin until Plaintiff could be seen by IFD Dr. Endy. (Id. )
Dr. Endy saw Plaintiff on November 4, 2013, who noted the 2,553 viral load and recommended continuing Plaintiff on the other two medications. (Id. ; Dkt. 81-4 at ¶ 21). On December 2, 2013, PA Oakes reviewed Plaintiff's latest round of blood tests, which showed that his viral load had gone back up to 69,974. (Dkt. 81-2 at ¶ 55). On December 3, 2013, Dr. Canfield spoke with Plaintiff, who agreed to discontinue treatment. (Id. at ¶ 57). On August 19, 2014, Plaintiff's test results showed that he remained at a stage F1-F2. (Id. at ¶ 59).
Around September 12, 2014, Plaintiff was transferred to Auburn. (Id. at ¶ 60). At that point, Plaintiff's then-current Fibrosis score (F1-F2) rendered him ineligible for further attempts at drug therapy. (Id. at ¶ 61). More specifically, the DOCCS Guidelines previously stated that all eligible patients with stage 2 fibrosis and above would be offered Triple Therapy treatment. (Dkt. 81-4 at 28). However, on November 12, 2014, after Harvoni was FDA approved, Dr. Koenigsmann sent a memorandum stating, "Please continue to make hepatitis C treatment requests at this time for genotype 1 cases with stage 3 or 4 fibrosis as Harvoni will be considered as a treatment regimen, if appropriate, despite not having an updated Hepatitis C Primary Care Practice Guideline. We are holding an update of the practice guideline in anticipation of additional medication options soon to be FDA approved." (Dkt. 81-3 at 64).
On March 13, 2015, Auburn received test results with a score of F3 (Dkt. 81-2 at ¶ 63), and after Plaintiff expressed an interest to NP Jeavons in HCV drug therapy on May 18, 2015, he was referred that same day to an IFD specialist (id. at ¶ 69). On June 11, 2015, IFD Dr. Namassivaya recommended treating Plaintiff with Harvoni. (Id. at ¶ 71). On June 18, 2015, Dr. Koenigsmann approved the 12 weeks of Harvoni for Plaintiff. (Id. at ¶ 72). Plaintiff's treatment began June 26, 2015, and completed on September 11, 2015. (Id. at ¶¶ 73, 74). In December 2015 and again in March 2018, lab testing confirmed that Plaintiff was free of HCV. (Id. at ¶¶ 74-75).
PROCEDURAL HISTORY
Plaintiff commenced this action on January 11, 2017. (Dkt. 1). On January 29, 2018, the Court granted Plaintiff's motion to proceed in forma pauperis and screened the complaint. (Dkt. 7). In the January 29, 2018 Decision and Order, the Court stated that certain claims would be dismissed unless Plaintiff filed an amended complaint by February 26, 2018. (Id. at 19). On February 12, 2018, Plaintiff filed an amended complaint. (Dkt. 8), which the Court screened on June 11, 2019 (Dkt. 11). The Court dismissed some of Plaintiff's claims but allowed the claims against Defendants in their individual capacities to proceed to service. (Id. ). On September 11, 2019, Defendants filed their respective answers. (Dkt. 20; Dkt. 21; Dkt. 22; Dkt. 23). The case was referred to Magistrate Judge Marian W. Payson for all pre-trial matters excluding dispositive motions. (Dkt. 24).
At that time, Dr. Canfield individually, as opposed to his estate, was a defendant. On October 8, 2019, Defendants’ counsel filed a suggestion of death as to Dr. Canfield. (Dkt. 26). On July 1, 2020, Kaye Canfield, as the Administrator of the Estate of Wesley Canfield, was substituted as a defendant in Dr. Canfield's place. (Dkt. 47).
On November 19, 2019, Judge Payson issued a scheduling order ordering discovery to be completed by July 21, 2020, and all dispositive motions to be filed by March 31, 2021. (Dkt. 29). On June 26, 2020, Defendants filed a motion to dismiss for failure to prosecute (Dkt. 44), along with a request that all scheduling deadlines be held in abeyance pending resolution of the motion, the latter of which Judge Payson granted (Dkt. 50). On January 26, 2021, the Court denied Defendants’ motion to dismiss. (Dkt. 55). After several amendments to the scheduling order (Dkt. 58; Dkt. 74), Defendants filed the present motion for summary judgment on January 3, 2022 (Dkt. 81). The Court issued a motion scheduling order (Dkt. 82), but Plaintiff neither responded to the present motion nor requested an extension of time to file a response.
DISCUSSION
I. Legal Standards Governing Motions for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the non-moving party, the Court finds that no rational jury could find in favor of that party. Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).
"The moving party bears the burden of showing the absence of a genuine dispute as to any material fact...." Crawford v. Franklin Credit Mgmt. Corp. , 758 F.3d 473, 486 (2d Cir. 2014). "Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Johnson v. Xerox Corp. , 838 F. Supp. 2d 99, 103 (W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation." Robinson v. Concentra Health Servs., Inc. , 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co. , 654 F.3d 347, 358 (2d Cir. 2011) ). Specifically, the non-moving party "must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact." Brown v. Eli Lilly & Co. , 654 F.3d 347, 358 (2d Cir. 2011). Indeed, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
II. Dr. Canfield and PA Oakes
Plaintiff asserts that Dr. Canfield and PA Oakes were deliberately indifferent to his serious medical needs from September 2011 to September 2014, primarily by refusing to treat him and by "botching" his Triple Therapy. (Dkt. 8 at 4-6). Defendants first argue that most claims regarding Dr. Canfield and PA Oakes are barred by the applicable statute of limitations. (Dkt. 81-8 at 4-5). Defendants also argue that Dr. Canfield and PA Oakes were not personally involved in any constitutional violation and that the alleged "botching" of the Triple Therapy was, at most, negligence. (Id. at 6-9). Lastly, they assert that any delays in treatment did not pose a significant risk of serious harm nor did Dr. Canfield or PA Oakes act with a sufficiently culpable state of mind in depriving Plaintiff of adequate medical treatment. (Id. at 9-18).
New York's three-year statute of limitations for personal injury actions governs a § 1983 Eighth Amendment medical indifference claim. See Gonzalez v. Wright , 665 F. Supp. 2d 334, 348-49 (S.D.N.Y. 2009). The clock starts to run when the plaintiff "knows or has reason to know of the harm." Shomo v. City of New York , 579 F.3d 176, 181 (2d Cir. 2009) (internal quotation marks omitted).
"Under the prison mailbox rule, a pro se prisoner's complaint is deemed filed upon its delivery to prison authorities for transmittal to the district court." Sides v. Paolano , 782 F. App'x 49, 50 (2d Cir. 2019). During his deposition, Plaintiff stated, "[W]hatever date [the Complaint] was notarized, ... that's what day I gave it to the officer." (Dkt. 81-7 at 42). Plaintiff signed and had the original complaint notarized on December 2, 2016. (Dkt. 1 at 10). Therefore, if Plaintiff knew or had reason to know of Defendants’ alleged misconduct as it occurred, any claims arising from wrongdoing that occurred prior to December 2, 2013, are time barred.
Defendants argue that claims based on the following alleged events are untimely: (1) Dr. Canfield's response to Plaintiff's November 2011 letter; (2) Dr. Canfield or PA Oakes delaying treatment (or refusing to treat) Plaintiff prior to his receipt of Triple Therapy in August 2013; and (3) the purported botching of the administration of Triple Therapy in October 2013. (Dkt. 81-8 at 5). The Court agrees that these claims are barred under the applicable statute of limitations.
To the extent the alleged "botching" of the treatment in October 2013 could not have been discovered until December 3, 2013, when Dr. Canfield told Plaintiff that the treatment had been a failure, the Court agrees with Defendants that the claim fails for other reasons. Specifically, there are no genuine issues of material fact as to the absence of Dr. Canfield's personal involvement in the initial decision to stop the treatment, and even to the extent that PA Oakes was involved, the alleged "botching" does not amount to an Eighth Amendment claim. See Watson v. Wright , No. 9:08-cv-62, 2011 WL 4527789, at *9 (N.D.N.Y. Aug. 4, 2011) ("Given the serious risks inherent in use of anti-HCV medications and the relatively slow rate of progression of Hepatitis-C in causing liver damage, the defendant doctors did not recklessly ignore plaintiff's serious medical needs by deciding to discontinue his treatment when his viral load did not respond to treatment to the extent called for by the DOCS Guidelines."). While Plaintiff's viral load was 2,553 in late October, it was not under 1,000 within four weeks of receiving Triple Therapy; therefore, the undisputed facts as established by Defendants’ expert support a conclusion that it was appropriate to terminate treatment. (See Dkt. 81-6 at ¶¶ 46, 47, 49). The record also belies Plaintiff's allegation that PA Oakes stopped the treatment "despite his failure to review" the test results that showed a viral load of 2,553. (Dkt. 8 at 5). The record indicates that Plaintiff stopped receiving the medications on October 25, 2013 (Dkt. 8-1 at 30), while the test Plaintiff cites did not occur until October 29, 2013 (Dkt. 81-4 at ¶ 18). In other words, the record does not support Plaintiff's claim that the treatment was "botched," let alone that any "botching" rose to the level of a constitutional violation.
In its screening order (Dkt. 7 at 7-9), the Court noted that Plaintiff may potentially invoke the continuing violation doctrine, which could allow the Court to consider allegations prior to December 2, 2013, if Dr. Canfield and PA Oakes were acting pursuant to "an ongoing policy of [deliberate indifference to Plaintiff's serious medical needs] and some non-time-barred acts [occurred] in the furtherance of that policy." Gonzalez , 665 F. Supp. 2d at 349 (internal quotation marks and citations omitted). The Court raised but did not decide the issue of whether Plaintiff's temporary transfer to Great Meadows prevented Plaintiff from benefitting from such a theory. (Dkt. 7 at 8-9). The Court need not resolve that issue, because by declining to oppose the summary judgment motion, Plaintiff failed to raise any genuine issue of material fact as to the existence of an ongoing policy of deliberate indifference and any non-time-barred acts taken in furtherance of that policy, as necessary to invoke the continuing violation doctrine. See Shomo , 579 F.3d at 182.
As to any claims arising from a lack of additional treatment after December 2013, the record fails to establish a genuine issue of material fact as to the objective element of an Eighth Amendment claim. To demonstrate an Eighth Amendment claim, a plaintiff must establish both objectively and subjectively that defendants’ actions amount to deliberate indifference to a serious medical need. Estelle v. Gamble , 429 U.S. 97, 104-106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). "Where the claims concern the alleged inadequacy of treatment, as opposed to the complete denial of treatment, the seriousness inquiry is narrower. In such cases, the focus is on 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." Lawrence v. Evans , 136 F. Supp. 3d 486, 489-90 (W.D.N.Y. 2015) (internal quotation marks and citations omitted), aff'd , 669 F. App'x 27 (2d Cir. 2016). Ultimately, "[t]he essential test is one of medical necessity and not one simply of desirability." Dean v. Coughlin , 804 F.2d 207, 215 (2d Cir. 1986) (internal quotation marks and citation omitted).
While in certain cases reasonable minds may disagree as to whether a case presents a delay or denial of treatment, see Harrison v. Barkley , 219 F.3d 132, 137 (2d Cir. 2000) ("This is not a case of delayed treatment as the dissent suggests."), on these facts, the Court does not construe the lack of retreatment between December 2013 and September 2014 as an outright denial of medical care in light of the fact that Plaintiff's treatment had just failed. Accordingly, the question presented is whether the lack of treatment during these nine months caused an injury or a risk of injury objectively serious enough to violate the Eighth Amendment. Smith v. Carpenter , 316 F.3d 178, 188-89 (2d Cir. 2003) (noting that where more than twenty-one months elapsed between the alleged deprivation of HIV medication and trial, "the jury was free to consider the absence of concrete medical injury as one of the relevant factors in determining whether the asserted deprivation of medical care was sufficiently serious to establish a claim under the Eighth Amendment"); see Lombardo v. Graham , 807 F. App'x 120, 123 (2d Cir. 2020) ("In cases where a prisoner alleges a delay in medical treatment, courts examine both the seriousness of the prisoner's medical conditions and the harm caused by any unreasonable delay.").
Here, Defendants’ expert has noted that "[o]ne of the distinctive features of hepatitis C infection is the slow rate at which it progresses usually without causing any signs or discomfort to the patient. Symptoms, secondary manifestations, or physical signs are rare until the development of advanced liver disease." (Dkt. 81-6 at ¶ 10). Indeed, when Plaintiff was tested in May 2013, his fibrosis level was an F2 (Dkt. 81-2 at ¶ 43), and in August 2014, his score remained at an F1-F2 (id. at ¶ 59). Additionally, Dr. Bozer asserts that none of the ailments Plaintiff alleges he previously or currently suffers from as a result of delay in treatment are per se extra hepatic manifestations of HCV, and are belied by medical records, including Plaintiff's lack of complaints when he was seen by Dr. Namassivaya on June 11, 2015. (Dkt. 81-6 at ¶¶ 61, 62). While Dr. Bozer acknowledges that Plaintiff's records indicate the presence of a thyroid condition, he states that there is no evidence any alleged delays in treatment caused this condition because interferon itself can cause thyroid dysfunction and Plaintiff was prescribed interferon by multiple IFDs both before and while in custody. (Id. at ¶ 63).
For example, Plaintiff contends he suffered from fatigue, confusion, joint and abdominal pain, burning dry eyes, water retention, hypertension, and a thyroid condition. (Dkt. 8 at 4).
By failing to respond to the instant motion, Plaintiff has failed to identify any issue of fact as to whether the lack of treatment between December 2013 and September 2014 caused an injury or a risk of injury objectively serious enough to violate the Eighth Amendment. Rather, the undisputed facts establish that Plaintiff's condition did not worsen during this time period.
In sum, the Court finds that Plaintiff's claims regarding Dr. Canfield's and PA Oakes's conduct that occurred prior to December 2, 2013, are time barred or otherwise fail for the reasons set forth above. As to any remaining allegations, Defendants met their burden to establish their entitlement to judgment as a matter of law, and in not opposing the current motion, Plaintiff failed to point to specific evidence demonstrating a genuine dispute as to whether any lack of treatment caused an injury or a risk of injury objectively serious enough to violate the Eighth Amendment. Accordingly, the Court grants Defendants’ motion for summary judgment as to the claims against Dr. Canfield and PA Oakes.
III. NP Jeavons
Plaintiff's claim against NP Jeavons arises from her alleged delay in referring Plaintiff to an IFD. (Dkt. 87-1 at 157 (asserting that NP Jeavons was deliberately indifferent when she did not give Plaintiff treatment prior to becoming an F3)). Plaintiff also asserts in his complaint that NP Jeavons failed to read or review test results for several months. (Dkt. 8 at 9). In contrast to the period between December 2013 to September 2014 when Plaintiff was under Dr. Canfield and PA Oakes’ care, Plaintiff's condition did worsen when he was transferred to Auburn and was being treated by NP Jeavons. That is, Plaintiff argues that while waiting to make a referral to a specialist until Plaintiff's fibrosis level reached a score of F3, Plaintiff's fibrosis level worsened and became an F3.
However, Plaintiff has not set established any disputed issue of fact with respect to the subjective prong of any claim against NP Jeavons. As to the subjective prong, "the official charged with deliberate indifference must act with a sufficiently culpable state of mind. That is, the official must know[ ] of and disregard[ ] an excessive risk to inmate health or safety; 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." Hill v. Curcione , 657 F.3d 116, 122 (2d Cir. 2011) (internal quotation marks and citations omitted).
NP Jeavons has stated that she "did not have any specialized medical knowledge regarding Hepatitis C, nor any authority to override DOCCS’[s] HCV Guidelines." (Dkt. 81-5 at ¶ 5). Therefore, it was reasonable for NP Jeavons to rely on instruction from the chief medical officer to prioritize patients with F3 and F4 fibrosis, especially considering that such guidance was consistent with AASLD guidelines. (See Dkt. 81-4 at ¶ 35 ("The AASLD has recognized the high cost of new HCV drug therapies as a common barrier to treatment, and the need to prioritize patients with stage F3 and F4 fibrosis.")); see also Graham v. Wright , No. 01 Civ. 9613, 2004 WL 1794503, at *5 (S.D.N.Y. Aug. 10, 2004) (concluding there would be no basis for a jury to find deliberate indifference when defendants’ actions did not deviate from prevailing medical standards), aff'd , 136 F. App'x 418, 419 (2d Cir. 2005). Furthermore, Plaintiff stated that "if [NP Jeavons] could have [given Plaintiff] the treatment, she probably would have" (Dkt. 81-7 at 150), and that "she made sure she kept checking" such that as soon as Plaintiff had an F3 score, she "immediately put in a referral" (id. at 152). Such facts fall far short of culpable recklessness.
Therefore, Plaintiff has failed to establish a material issue of fact as to NP Jeavons's deliberate indifference, and Defendants’ motion for summary judgment is granted as to the claims against NP Jeavons.
IV. Dr. Koenigsmann
Plaintiff's final claim is against Dr. Koenigsmann, who never met Plaintiff (Dkt. 81-7 at 169), but was DOCCS's Deputy Commissioner/Chief Medical Officer. Specifically, Plaintiff takes issue with: (1) the response he received to a November 2011 letter he sent to Dr. Koenigsmann; (2) obstacles to treatment that Dr. Koenigsmann put into place through requirements in and changes to the DOCCS Guidelines; and (3) Dr. Koenigsmann's failure to properly train Dr. Canfield, PA Oakes, and NP Jeavons. (Dkt. 8 at 11).
Plaintiff's issue with the response to his November 2011 letter is untimely. See Gonzalez , 665 F. Supp. 2d at 348-49. Furthermore, because Dr. Koenigsmann asked Dr. Bogarski to respond to Plaintiff's letter (Dkt. 81-3 at 77), this claim does not demonstrate the requisite personal involvement by Dr. Koenigsmann. See DeMeo v. Koenigsmann , No. 11 CIV. 7099, 2015 WL 1283660, at *16 (S.D.N.Y. Mar. 20, 2015) ("Plaintiff's letters to Dr. Koenigsmann do not satisfy the requirement of personal involvement; although plaintiff sent letters to Dr. Koenigsmann on January 3, 2011 and March 2, 2011, both of those letters were referred to [a] subordinate, Grinbergs, who responded to plaintiff herself.").
As to claims that Dr. Koenigsmann is liable due to the DOCCS Guidelines or other policies regarding the treatment of patients with hepatitis C, Plaintiff has not established a "triable question as to whether unconstitutional practices occurred under the guideline[s]." Salahuddin v. Goord , 467 F.3d 263, 282 (2d Cir. 2006) (concluding that plaintiff's claim of supervisory liability against defendant for his role in promulgating a DOCCS policy fails because plaintiff failed to raise a triable question as to whether unconstitutional practices occurred under the guidelines). Cf. Ippolito v. Goord , No. 05-CV-6683, 2012 WL 4210125, at *13 (W.D.N.Y. Sept. 19, 2012) ("While liability may not be established against a defendant simply because that defendant was a ‘policy maker’ at the time unconstitutional acts were committed, where unconstitutional acts are the result of a policy promulgated by the defendant, a valid § 1983 action may lie." (internal quotation marks and citation omitted)). The same is true as to any claim of failure to train. See Banks v. Annucci , 48 F. Supp. 3d 394, 418 (N.D.N.Y. 2014) ("Moreover, because it has already been determined that plaintiff failed to state a claim for inadequate medical care against any of the defendants, there is no unconstitutional conduct in this regard which defendant Koenigsmann, as a supervisor, can be held responsible."); see also Phillips ex rel. Green v. City of New York , 453 F. Supp. 2d 690, 727 (S.D.N.Y. 2006) (noting that a deficiency in training must have actually caused an injury).
Defendants suggest that Dr. Koenigsmann cannot be liable because he was not personally involved in the creation of the DOCCS Guidelines, which he tasked Dr. Bozer with overseeing. (Dkt 81-8 at 6). However, construing the claim in a light most favorable to Plaintiff, it was Dr. Koenigsmann's memorandum that advised DOCCS medical professionals to recommend Harvoni treatment for patients with F3 and F4 scores. (Dkt. 81-3 at 64). Therefore, the Court analyzes the merits of this claim.
Nor has Plaintiff shown that Dr. Koenigsmann issued any policy or failed to train DOCCS medical personnel with a sufficiently culpable state of mind. DOCCS's policy to prioritize patients with F3 and F4 fibrosis, and the medical personnel's practice to abide by that policy, were supported by national standards. (Dkt. 81-6 at ¶ 35 ("The DOCCS Guidelines are based on community standards at the time, including the guidelines drafted by the [AASLD]. The AASLD has recognized the high cost of new HCV drug therapies as a common barrier to treatment, and the need to prioritize patients with stage F3 and F4 fibrosis.")); see also Graham , 2004 WL 1794503, at *5 (concluding there would be no basis for a jury to find deliberate indifference when defendants’ actions did not deviate from prevailing medical standards), aff'd , 136 F. App'x 418, 419 (2d Cir. 2005) ; Ziemba v. Armstrong , 430 F.3d 623, 625 (2d Cir. 2005) ("As for training, [plaintiff] has not come forward with any competent evidence that the training promulgated and supervised by [defendant] deviated in any material respect from accepted training practices."); Rowles v. Doe , 558 F. Supp. 3d 66, 72 (W.D.N.Y. 2021) (dismissing claim where complaint did not "describ[e] a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference"). Perhaps most importantly, Dr. Koenigsmann approved of Plaintiff's treatment each time a request was filed by facility providers (Dkt. 81-3 at ¶¶ 24-25, 30-31), and Plaintiff was ultimately cured of his hepatitis C (Dkt. 81-2 at ¶¶ 74, 75). Therefore, considering the record and lack of response to the present motion, Plaintiff has failed to establish a material issue of fact as to his claims against Dr. Koenigsmann, and Defendants are entitled to summary judgment.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment (Dkt. 81) is granted.
SO ORDERED.