Opinion
02-CV-029F (consent).
February 18, 2005
RANDOLPH R. SCOTT, SR., Pro Se, White Deer, Pennsylvania.
WEBSTER SZANYI, LLP, Attorneys for Defendant Beilein, CHARLES E. GRANEY, of Counsel, Buffalo, New York.
DECISION and ORDER
JURISDICTION
The parties to this action consented to proceed before the undersigned on May 31, 2002. The matter is presently before the court on Plaintiff's motion for summary judgment (Doc. No. 63), filed on February 20, 2004, Plaintiff's supplemental motion for summary judgment (Doc. No. 64), filed on February 27, 2004, and Defendant Beilein's crossmotion for summary judgment (Doc. No. 72), filed on April 16, 2004.
BACKGROUND
Plaintiff, Randolph R. Scott, Sr., proceeding pro se, commenced this civil rights action pursuant to 42 U.S.C. § 1983 on January 11, 2002, alleging Defendants, Niagara County Court Chief Clerk Anglelo A. DelSignore, Niagara County Sheriff Thomas A. Beilein, Niagara County Attorney Claude Jeorg, and Niagara County Sheriff Deputies Tim Blackley and Sergeant Stickney (collectively referred to as "Defendants"), violated Plaintiff's constitutional rights under the Fourth, Fifth, Sixth, Eighth, Thirteenth and Fourteenth Amendments by denying Plaintiff access to his asthma medication while in custody. Pursuant to a Decision and Order by District Judge David G. Larimer, filed on February 12, 2002 (Doc. No. 5) ("February 12, 2002 Decision and Order"), all claims were dismissed as against all Defendants except for the Eighth Amendment deliberate indifference claim which was permitted to proceed as against Defendant Sheriff Beilein.On February 20, 2004, Plaintiff filed a motion for summary judgment seeking summary judgment on Plaintiff's deliberate indifference claim. A Memorandum of Law in support is attached to the motion (Doc. No. 63) ("Plaintiff's Memorandum"). On February 27, 2004, Plaintiff filed a supplemental motion for summary judgment seeking summary judgment on the issue of whether Plaintiff exhausted available administrative remedies regarding his deliberate indifference claim. Plaintiff filed in support of the supplemental motion an attached Memorandum of Law and exhibits (Doc. No. 64) ("Plaintiff's Supplemental Memorandum"), and an affidavit (Doc. No. 65) ("Plaintiff's Affidavit").
On April 16, 2004, Defendant filed a crossmotion for summary judgment (Doc. No. 72), supported by the attached Declaration of Frank V. Balon, Esq. ("Balon Declaration"), a Memorandum of Law (Doc. No. 73) ("Defendant's Memorandum"), and a Statement of facts Pursuant to Federal Rules of Civil Procedure, Local Rule 56 (Doc. No. 74) ("Defendant's Fact Statement"). On April 28, 2004, Plaintiff filed in response to Defendants' crossmotion for summary judgment an affidavit (Doc. No. 77) ("Plaintiff's Response Affidavit"). On May 13, 2004, Defendants filed in further support of their crossmotion for summary judgment a Reply Memorandum of Law (Doc. No. 79) ("Defendants' Reply Memorandum"). On May 28, 2004, Plaintiff filed a Response in opposition to Defendants' Reply Memorandum (Doc. No. 80) ("Plaintiff's Reply"). Oral argument was deemed unnecessary.
On April 19, 2004, Defendants filed an exact duplicate of the Balon Declaration (Doc. No. 75), but without the exhibits attached to the first filing.
Based on the following, Plaintiff's motion for summary judgment (Doc. No. 63) and supplement motion for summary judgment (Doc. No. 64) are DENIED; Defendants' crossmotion for summary judgment (Doc. No. 72) is GRANTED.
FACTS
Taken from the pleadings and motion papers filed in this action.
On February 8, 2001, Plaintiff, Randolph R. Scott, Sr. ("Scott"), while serving a two-month term of incarceration in Niagara County Jail ("the county jail"), was transported to the Niagara Falls City Jail ("the city jail"), for an overnight stay in order to appear in court the following morning. Scott made several requests for permission to bring his asthma medication with him to the city jail, but the requests were denied because of a county jail policy prohibited county jail inmates from possessing medication. Defendant Niagara County Sheriff Thomas A. Beilein ("Sheriff Beilein") is responsible for county jail policies.
In the evening of February 8, 2001, while held in the city jail, Scott suffered an asthma attack and, as he did not have his medication, Scott had to be taken in an ambulance for emergency treatment at Niagara Falls Memorial Medical Center ("the hospital"), where Scott was treated with an "inhaled bronchodilator", also referred to as an asthma inhaler, to improve his breathing. Scott, who was discharged from the hospital less than an hour after his arrival, had the asthma inhaler with him upon returning to the city jail where Defendant Niagara County Sheriff Deputy Tim Blackley took the asthma inhaler, threw it on the floor and broke it. Scott, who is indigent, was billed for both the ambulance ride and his treatment at the hospital, despite the fact that neither would have been necessary had Scott been permitted to bring his asthma medication with him on the overnight trip to the city jail.
On February 9, 2001, Scott filed an administrative complaint with the county jail regarding the denial of his requests to bring his asthma medication with him to the city jail. According to Scott, about a week after filing the administrative complaint, county jail officers Captain Fictingner and Sergeant Giles interviewed Scott regarding the incident and further investigation was ordered. Two weeks after the interview, Scott wrote Captain Fictingner and Sergeant Giles, inquiring about the investigation. The following week, Scott received a reply advising the matter was still under investigation. After another two weeks passed without any resolution of or further communication regarding the matter, Scott filed a complaint against Captain Fictingner and county jail administration for failure to timely investigate the matter and requested a grievance form.
County jail grievance coordinator Sergeant Dress responded to the new complaint against Captain Fictingner and county jail administration, and Scott was given a grievance form. Scott submitted the grievance form within a few days of receiving it, but, as Scott was released from the county jail shortly thereafter, Scott did not further pursue the grievance. Scott was later reincarcerated in the county jail and is currently incarcerated, presumably on an unrelated federal conviction, at United States Penitentiary Allenwood ("USP Allenwood") in White Deer, Pennsylvania.
The record does not indicate when Scott was readmitted to the county jail, how long Scott remained in the county jail upon being reincarcerated there, or when Scott was incarcerated at USP Allenwood. However, the absence of such information will not prevent a disposition on the merits of the instant motions.
DISCUSSION
Summary judgment of a claim or defense will be granted when a moving party demonstrates that there are no genuine issues as to any material fact and that a moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). The court is required to construe the evidence in the light most favorable to the non-moving party. Tenenbaum v. Williams, 193 F.3d 58, 593 (2d Cir. 1999) (citing Anderson, supra, at 255). The party moving for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact and if there is any evidence in the record based upon any source from which a reasonable inference in the non-moving party's favor may be drawn, a moving party cannot obtain a summary judgment. Celotex, supra, at 322; see Anderson, supra, at 247-48 ("summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party"). In assessing a record to determine whether there is genuine issue of material fact, the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought. Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991)."[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.' Such a motion, whether or not accompanied by affidavits, will be `made and supported as provided in this rule [FRCP 56],' and Rule 56(e) therefore requires the non-moving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, supra, at 323-24 (1986) (quoting Fed.R.Civ.P. 56). Thus, "as to issues on which the non-moving party bears the burden of proof, the moving party may simply point out the absence of evidence to support the non-moving party's case." Nora Beverages, Inc. v. Perrier Group of America, Inc., 164 F.3d 736, 742 (2d Cir. 1998).
Both Scott and Defendants seek summary judgment as to whether Scott exhausted administrative remedies in connection with the grievance filed with the county jail, as well as the merits of Scott's challenge to the county jail policy upon which Defendants relied in denying Scott permission to bring his asthma medication to the city jail. Defendants maintain the Scott has failed to exhaust his administrative remedies and that, in any event, Scott has failed to establish any triable issue of fact which, if decided in Scott's favor, would permit Scott to recover for an Eighth Amendment violation based on the denial of his asthma medication. Scott maintains that he sufficiently exhausted his administrative remedies to the extent possible given his release from the county jail soon after filing his grievance, and that the record establishes a violation of his Eighth Amendment rights.
1. Exhaustion of Administrative Remedies
Defendants, who do not dispute that Scott filed a grievance with the county jail, maintain that they are entitled to summary judgment because Scott has admitted that he did not exhaust his administrative remedies. Defendants' Memorandum at 3; Defendants' Reply Memorandum at 3-4. Scott argues in opposition that he exhausted his administrative as much as possible until he was released from the county jail, including the filing of a complaint and a formal grievance with the county jail administrators and participating in the ensuing investigation. Plaintiff's Supplemental Memorandum at 1; Plaintiff's Affidavit ¶¶ 1, 3-4, 11, 13-15.
The Prison Litigation Reform Act of 1995 ("the PLRA"), 110 Stat. 1321 (1996), codified at 42 U.S.C. § 1997e, provides that
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).
This mandatory administrative exhaustion requirement applies to all civil actions with respect to prison conditions and individual instances of prison misconduct. Webb v. Goord, 340 F.3d 105, 112 (2d Cir. 2003). A "civil action with respect to prison conditions" is defined under the PLRA as
any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.18 U.S.C. § 3626(g)(2) (emphasis added).
Based on the language of the PLRA, Scott's federal civil rights claims, alleging deliberate indifference to his serious medical needs, fall within this definition and, as such, the PLRA's exhaustion requirement applies. See Richardson v. Goord, 347 F.3d 431, 433-34 (2d Cir. 2003) (remanding to district court for determination as to whether inmate plaintiff exhausted administrative remedies regarding claim that defendants acted with deliberate indifference to plaintiff's serious medical needs in violation of the Eighth Amendment).
Exhaustion of administrative remedies is an affirmative defense, rather than a jurisdictional requirement. Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004); Giano v. Goord, 380 F.3d 670, 677 (2d Cir. 2004). As such, a defendant must either raise a plaintiff's failure to exhaust as an affirmative defense, or the defense is waived. Johnson, supra, at 695. Further, as the failure to exhaust is an affirmative defense, it is the defendant's burden to establish that the plaintiff failed to exhaust and, in certain circumstances, a defendant's own actions may preclude the defendant from asserting failure to exhaust as a defense. Giano, supra, at 675. Accordingly, here, it is Defendants' burden to establish that Scott failed to exhaust administrative remedies.
Although exhaustion is generally mandatory, in "certain situations," including where administrative remedies are not "`available' to prisoners seeking redress of their grievances," the plaintiff's failure to exhaust is justified. Giano, supra, (citing 42 U.S.C. § 1997e(a)). As such, Defendants, to meet their burden of proof on the asserted failure to exhaust defense, are required to establish that administrative remedies were available, but that Scott failed to exhaust the remedies. In attempting to meet their burden, Defendants rely on the fact that Scott admitted in papers submitted in connection with the instant summary judgment motions that Scott failed to exhaust his administrative remedies because county jail officials interfered with Scott's attempts to pursue such remedies, and further maintain that Scott has submitted no evidence that he ever attempted to pursue any administrative remedies relative to his claims. Defendants' Memorandum at 3 (citing Plaintiff's Affidavit). Defendants also rely in support of summary judgment on the affirmative defense of exhaustion that Scott attributed his failure to administratively exhaust the instant claims to the fact that Scott was released from incarceration at the county jail prior to the resolution of his administrative grievance. Defendants' Reply Memorandum at 3-4 (citing Plaintiff's Affidavit and Plaintiff's Response Affidavit).
Defendants' bald assertion that Scott has failed to present any evidence that he ever attempted to exhaust administrative remedies, Defendants' Memorandum at 3, is, without more, insufficient to satisfy Defendants' burden of proof on their affirmative defense. See Black v. Coughlin, 76 F.3d 72, (2d Cir. 1996) (holding it is defendant's burden in § 1983 action to prove, either at trial or on summary judgment, affirmative defense of qualified immunity and plaintiff was not required to show absence of such defense). Significantly, Defendants have not submitted anything substantiating their assertion that Scott may not have filed any complaint or grievance regarding the denial of Scott's request to bring asthma medication with him to the city jail, such as a log showing the absence of any such claim being filed while Scott remained incarcerated at the county jail, or an affidavit from the county jail's Inmate Grievance Program ("IGP") indicating that Scott never filed an administrative claim. See Henrietta D. v. Bloomberg, 331 F.3d 261, 278 (2d Cir. 2003) (observing that absent statutory language to the contrary, Second Circuit would not hold that Congress intended plaintiff to carry burden of establishing a negative proposition where such would impose an "enormous evidentiary burden" and citing cases including Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (concluding Congress intended PLRA's administrative exhaustion requirement intended as an affirmative defense because, inter alia, prison official defendants have better access to prison records)).
Further, an inmate's release from custody prior to the resolution of an administrative grievance has been held to constitute a "special circumstance" in which administrative exhaustion is not required. See Liner v. Goord, 115 F.Supp.2d 432, 434 (S.D.N.Y. 2000) (holding that where inmate filed grievance with IGP, but was released before appealing unfavorable administrative decision to Central Office Review Committee, administrative remedies were no longer available and, thus, inmate's § 1983 action against defendant prison officials could not be dismissed based on inmate's failure to exhaust). Nevertheless, courts have not excused a former inmate's failure to exhaust where the inmate had ample time to file a grievance and pursue administrative remedies prior to being released from custody. See Finger v. Superintendent McGinnis, 2004 WL 1367506, *5 (S.D.N.Y. June 16, 2004) (observing that upon inmate's release from incarceration, administrative remedies were no longer available, but that inmate was nevertheless not excused from exhausting administrative remedies because inmate had sufficient time to exhaust prior to release nine months later). Additionally, release from incarceration does not always end a plaintiff's obligation to pursue administrative remedies, particularly when the plaintiff is shortly thereafter reincarcerated at the same correctional facility where an earlier administrative grievance was filed. See Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2004) (holding that administrative grievance procedures were "available" to plaintiff within the meaning of the PLRA's exhaustion requirement during inmate's three separate periods of incarceration at same correctional facility, even though second and third terms of incarceration were for offenses other than that for which plaintiff was initially confined and during which grievance arose).
In the instant case, Scott maintains that he filed an inmate grievance, but that he was unexpectedly released from the county jail before the grievance was resolved and, after his release, Scott did not further pursue the grievance. Plaintiff's Affidavit ¶¶ 11-15. Significantly, Defendants neither challenge Scott's assertion that he filed an administrative grievance, nor do Defendants argue that Scott should have filed his administrative grievance earlier and that had Scott done so, that there was ample time for the grievance to be resolved prior to Scott's release. Defendants also fail to argue that Scott's reincarceration at the county jail, the term of which is not provided in the record, in combination with Scott's earlier incarceration, provided Scott with ample time to pursue his administrative grievance. Accordingly, Defendants have failed to meet their burden of establishing that Scott failed to sufficiently pursue his administrative remedies regarding the claims presently before the court.
Defendants' motion for summary judgment on the ground that Scott failed to pursue administrative remedies is therefore DENIED.
2. Eighth Amendment Violation
Scott claims he was denied adequate medical care when, pursuant to a county jail policy, his request to bring his asthma medication with him to the city jail on the night of February 8, 2001, was denied, which resulted in Scott having to be transported to a local hospital for emergency care upon having an asthma attack at the city jail. Petition at 4. Scott seeks summary judgment on this claim on the basis that there is no genuine issue of fact that the challenged county jail policy exists and that such policy was unreasonably applied to Scott, resulting in a "severe deprivation" of his medical needs. Plaintiff's Memorandum at 1. Defendants argue in opposition to Plaintiff's summary judgment motion and in favor of Defendants' summary judgment request that Scott has failed to produce any evidence establishing a triable issue of fact that, as a result of the county jail's policy, the county jail staff was deliberately indifferent to a serious medical need. Defendants' Memorandum at 5-7; Defendants' Reply Memorandum at 4-7
Initially, the court observes that there is no merit to the assertions by both Scott and Defendants that because Scott had yet to be convicted of the criminal charges for which he was transported to the city jail in the evening of February 8, 2001, Scott's claims should be analyzed on the basis of Scott's status as a pretrial detainee under the Fourteenth Amendment. See Plaintiff's Memorandum at 1; Balon Declaration ¶ 7. Rather, although the asthma attack Scott suffered during the evening of February 8, 2001, occurred while Scott was being held at the city jail, a fair reading of the Petition establishes that it is the alleged denial of Scott's request for permission to take his asthma medication with him to the city jail that Scott is challenging. Petition at 4. Scott's request allegedly was denied by county jail officials pursuant to a county jail policy, the enforcement of which allegedly is Defendant Sheriff Beilein's responsibility. Id. As such, Scott's claim for denial of adequate medical care is properly analyzed as a violation of the Eighth Amendment's proscription against cruel and unusual punishment.
Whether the Eighth Amendment or the Fourteenth Amendment applies is largely academic given that the same "deliberate indifference to a serious medical need" test is applied to both inmates and pretrial detainees alleging denial of adequate medical care. Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000); Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996).
It is well settled that the Eighth Amendment prohibits "cruel and unusual" punishment suffered during imprisonment. Estelle v. Gamble, 429 U.S. 97 (1976). Under the Eighth Amendment, prison officials are required to provide humane conditions of confinement, ensuring that inmates receive adequate food, clothing, shelter, and medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994). "In order to establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must prove `deliberate indifference to [his] serious medical needs.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Estelle, supra, at 104 (bracketed text in original)). A serious medical condition exists where "the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." Chance, supra, at 702. Further, the standard for determining whether there has been an Eighth Amendment violation based on deliberate indifference to a prisoner's serious medical needs
incorporates both objective and subjective elements. The objective `medical need' element measures the severity of the alleged deprivation, while the subjective `deliberate indifference' element ensures that the defendant prison official acted with a sufficiently culpable state of mind.Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003) (citing Estelle, supra, at 104, and Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)).
Denying or delaying access to medical care or intentionally interfering with prescribed treatment may constitute deliberate indifference. Estelle, supra, at 104; see Harrison v. Barkley, 219 F.3d 132, 138 (2d Cir. 2000) (holding dentist's outright refusal for one year to treat a cavity, a degenerative condition that tends to cause acute infection and pain if left untreated, combined with imposition of an unreasonable condition on such treatment, could constitute deliberate indifference on the part of prison dentist, precluding summary judgment in defendant's favor). Such treatment violates the Eighth Amendment "whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards by intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Estelle, supra, at 104-105. Further, culpable intent requires the inmate to establish both that a prison official "has knowledge that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the harm." Hayes v. New York City Department of Corrections, 84 F.3d 614, 620 (2d Cir. 1996) (citing Farmer, supra, at 834-35).
In the instant case, Defendants assert in support of summary judgment that the denial of Scott's request to bring his asthma medication with him from the county jail to the city jail where Scott was to be housed overnight on February 8, 2001, did not amount to deliberate indifference to a serious medical need because Scott's "asthma is not a condition that may produce death, degeneration or extreme pain." Defendants' Memorandum at 5. In support of this argument, Defendants rely on the fact that the asthma attack that Scott suffered on February 8, 2001, was, "at worst, a very mild asthma exacerbation." Id. In further support, Defendants submit the affidavit of Robert Rattner, M.D. ("Dr. Rattner Affidavit"), who explains that the medical records of the treatment Scott received at the hospital are "consistent with the standard of care for a patient experiencing a mild asthmatic exacerbation which consisted of taking five puffs with an asthma inhaler." Dr. Rattner Affidavit ¶¶ 5, 13. Dr. Rattner continues that Scott was discharged from the hospital's emergency room "within an hour of his arrival," that Scott never exhibited signs of diminished blood oxygen levels, and that a patient having more than a mild exacerbation of asthma would have a number of other findings upon examination, which Scott did not exhibit. Dr. Rattner Affidavit ¶¶ 6-12. Defendants thus maintain they are entitled to summary judgment because Scott has failed to point to any issue of fact that his asthma attack was serious enough to satisfy the objective prong of the deliberate indifference standard. Defendants' Memorandum at 5-6; Defendants' Reply Memorandum at 5. Defendants also argue they are entitled to summary judgment because Scott has failed to demonstrate a triable issue of fact that as a result of county jail policy, any county jail official was deliberately indifference to Scott's serious medical needs. Defendants' Memorandum at 5-6; Defendants' Reply Memorandum at 6-7.
Exhibit C to Defendants' Notice of Crossmotion for Summary Judgment.
The court first considers the objective prong of the standard for determining whether Scott's Eighth Amendment rights were violated by Defendants' deliberate indifference to his serious medical needs. A sufficiently serious condition is "a condition of urgency, one that may produce death, degeneration, or extreme pain." Hathaway, supra, at 66. The mere fact that an inmate has an asthmatic condition does not necessarily mean that the inmate has a serious medical need, although an actual asthma attack, depending on the severity, may be a serious medical condition. See Patterson v. Lilley, 2003 WL 21507345, *3-4 (S.D.N.Y. June 30, 2003) (denial of asthma medication to asthmatic who alleged no discomfort or symptoms of an emergent attack does not satisfy objective component of deliberate indifference claim). Rather, the existence of the condition must be distinguished from a situation in which an inmate is actually experiencing an asthma attack. Patterson, supra (comparing and contrasting Ennis v. Davies, 1990 WL 121527 (S.D.N.Y. Aug. 15, 1990 (denying defendants' motion for summary judgment based on prison official's refusal to provide inmate with his asthma medication during an actual asthma attack), with Sulkowska v. City of New York, 129 F.Supp.2d 274 (S.D.N.Y. 2001) (defendant's denial of pretrial detainee's asthma medication, in the absence of an asthma attack, amounted to nothing more than mere negligence and did not satisfy objective prong of deliberate indifference test)). Similarly, in Patterson, supra, an inmate with an asthmatic condition, was denied access to his daily asthma medication upon arriving at a correctional facility, and was informed that he had to wait until the next morning before he could be screened for his medication. Patterson, supra, at *1. The inmate experienced an asthma attack the next morning, for which he received breathing treatment and was given oral medication. Id. The inmate later sued the prison officials for an Eighth Amendment violation based on the failure to provide him with his asthma medication, thereby causing the inmate to suffer an asthma attack. Id. at *2. The court held that because the inmate was never denied any treatment for an actual asthma attack, the objective prong of the deliberate indifference test was not met. Id. at * 4.
Significantly, in the instant case, when Scott's request for permission to bring his asthma medication with him to the city jail was denied, Scott was not then exhibiting any symptoms of an imminent asthma attack. Moreover, when Scott did experience an actual asthma attack while at the city jail, Scott was taken for medical treatment at the emergency room of a local hospital. Scott does not allege that such treatment was unduly delayed, or in any way insufficient to alleviate his symptoms. In contrast, the medical records Defendants submitted in support of summary judgment, the authenticity and accuracy of which Scott does not dispute, establish that Scott's asthma symptoms were alleviated by taking five puffs of a bronchiodilator, and that Scott, upon being discharged within an hour of his arrival at the local hospital, was free of asthma symptoms. Medical Records, Exhibit A to Dr. Rattner Affidavit. Accordingly, the record demonstrates that the objective prong of the deliberate indifference standard has not been met by the denial of Scott's request for permission to bring his asthma medication with him for the overnight stay at the city jail.
The record also establishes that the subjective prong of the deliberate indifference test has not been met. Preliminarily, the court observes that Defendants' conduct must be examined only in the context of Scott's medical condition when his request for permission to take his asthma medication with him to the city jail was denied. Patterson, supra, at *4 and n. 3. However, the record is devoid of any indication that Scott was on the verge of experiencing an asthma attack either when he requested his medication, or when the request was denied. Moreover, even if Scott was experiencing any symptoms of an asthma attack prior to being transported to the city jail, nothing in the record establishes, nor does Scott allege, that any Defendant observed such symptoms, yet failed to provide Scott with treatment. As such, the record demonstrates that the subjective prong of the deliberate indifference standard of culpable intent, i.e., that a prison official both knew that Scott was experiencing a severe asthma attack, yet failed to take reasonable measures to abate any harm from the attack, Hayes, supra, at 620, also has not been met.
As neither the objective, nor the subjective prong of the deliberate indifference standard for establishing an Eighth Amendment violation based on the denial of adequate medical care for a serious medical need has been met, summary judgment is GRANTED in favor of Defendants and DENIED as to Scott.
CONCLUSION
Based on the foregoing, Plaintiff's motion for summary judgment (Doc. No. 63) and supplement motion for summary judgment (Doc. No. 64) are DENIED; Defendants' crossmotion for summary judgment (Doc. No. 72) is GRANTED. The Clerk of the Court is directed to close the file.
Any appeal to the United States Court of Appeals for the Second Circuit, New York, New York, must be filed within thirty (30) days of the date of judgment in this action. See Fed.R.App. 4(a)(1). Further, the court certifies under Rule 24(a)(3)(A) of the Federal Rules of Appellate Practice that any appeal by Plaintiff of the foregoing Decision and Order would not be in good faith as the paucity of the record fails to establish a triable issue of fact for any Eighth Amendment claim. As such, requests to proceed on appeal as a poor person must be filed with the United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24(a)(5) of the Federal Rules of Appellate Procedure.
SO ORDERED.