Opinion
9:12-CV-1372 (NAM/TWD)
09-01-2015
MICHAEL AZIZ ZARIF SHABAZZ, Plaintiff, v. T. HOWARD, et al. Defendants.
APPEARANCES: MICHAEL AZIZ ZARIF SHABAZZ 72-B-0089 Plaintiff pro se Upstate Correctional Facility P.O. Box 2001 Malone, NY 12953 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants The Capitol Albany, NY 12224 OF COUNSEL: RACHEL M. KISH, ESQ. Assistant Attorney General
APPEARANCES: MICHAEL AZIZ ZARIF SHABAZZ
72-B-0089
Plaintiff pro se
Upstate Correctional Facility
P.O. Box 2001
Malone, NY 12953
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, NY 12224
OF COUNSEL: RACHEL M. KISH, ESQ.
Assistant Attorney General
THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Norman A. Mordue, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Michael Aziz Zarif Shabazz has asserted claims for excessive force and deliberate indifference to his serious medical needs in violation of his Eighth Amendment rights. (See generally Dkt. No. 1.) Defendant Candy Atkinson, R.N. ("Atkinson") has moved pursuant to Federal Rule of Civil Procedure 56 for partial summary judgment on Plaintiff's Eighth Amendment claim against her for deliberate indifference to his serious medical needs. (Dkt. No. 48.) Plaintiff has failed to oppose the motion despite having been granted an extension of time to August 17, 2015, within which to do so. (Dkt. No. 55.) For reasons explained below, I recommend that Defendant Atkinson be granted summary judgment.
The two Eighth Amendment claims are the only claims that survived the initial review undertaken pursuant to 28 U.S.C. § 1015(e)(2)(B) and § 1915A. (See Dkt. No. 11.)
"Candy" is spelled incorrectly as "Candi" in Plaintiff's Complaint. (Dkt. No. 1 at 1.)
Although Defendant Atkinson filed an outdated and inadequate notice form in her attempt to comply with N.D.N.Y. L.R. 7.1(a)(3) and L.R. 56.2 (Dkt. No. 48-1 at 1), the Clerk's Office provided Plaintiff with the current form advising him of the consequences of his failure to respond to her motion for partial summary judgment on June 1, 2015. (Dkt. No. 50 at 2.)
I. FACTUAL BACKGROUND
Plaintiff is an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") at Upstate Correctional Facility ("Upstate") in Malone, New York. (Dkt. No. 1 at ¶ 5.) Defendant Atkinson is a Registered Nurse ("RN") who was employed by DOCCS at Upstate throughout the relevant time period. (Dkt. No. 48-4 at ¶ 1.)
Plaintiff has alleged that on August 7, 2009, Defendants Rhondo, Burdett, and Howard used excessive force against him, breaking his left leg and causing other injuries. (Dkt. No. 1 at ¶¶ 15-28.) Following this alleged incident, Plaintiff underwent surgery during which two metal plates and fifteen screws were inserted into the broken leg. Id. at ¶ 18. After surgery, the facility medical staff provided Plaintiff with the use of crutches, an "out of cell" wheelchair, and a splint on his left ankle. (Dkt. No. 49.)
Neither the excessive force claim asserted against Defendants T. Howard, R. Rhondo, and B. Burdett, nor the deliberate indifference to Plaintiff's serious medical needs claim against Defendants Dr. D'Acevedo, whose name is spelled incorrectly as "Acevedo" in Plaintiff's Complaint (Dkt. No. 1 at 1), and Dr. Roe, is at issue in the present motion.
On December 23, 2009, facility physician, Defendant Dr. Mario D'Acevedo ("Dr. D'Acevedo"), ordered discontinuance of Plaintiff's crutches, wheelchair, and splint. (Dkt. No. 49.) According to Defendant Atkinson, Plaintiff's Ambulatory Health Record ("AHR"), dated December 23, 2009, as written and signed by Dr. D'Acevedo, reads in pertinent part:
Subjective: PCP [Primary Care Physician] to evaluate need for crutches, out of cell w/c [wheelchair], and check on splint and/or cast.(Dkt. Nos. 48-4 at ¶ 11; 49.) Defendant Atkinson executed Dr. D'Acevedo's orders and made entries on the AHR noting that Plaintiff's splint had been forwarded to the facility arsenal to be destroyed, and that security was advised that Plaintiff's crutches had been retrieved. (Dkt. Nos. 48-4 at ¶¶ 9-10; 49.)
Objective: Refused ortho [Orthopedist] f/u [follow-up] on 9/11/09 and PT [Physical Therapist] per [Orthopedist] recommend on 9/11/09 D/C/ [discontinue] crutches and [discontinue] splint L [left] leg
Assessment: IM [inmate] walks in cell [without] crutches; Refusal PT [and] Ortho
Provider Orders: [Discontinue] crutches, [Discontinue] splint, [Discontinue] wheelchair out of cell.
In his Complaint, Plaintiff has alleged that Atkinson conspired with Defendant Drs. Jerry "Roe" ("Dr. Roe") and D'Acevedo to take away his crutches. (Dkt. No. 1 at ¶ 50.) According to Plaintiff, on one occasion during the first six months of 2010, he hopped to his cell door on his right leg. Id. at ¶ 58.) Atkinson saw him hopping to the cell door without his crutches and told Dr. Roe that Plaintiff was walking and to take away his crutches. Id. at ¶¶ 58-59.
Plaintiff does not know Dr. Roe's last name. (Dkt. No. 48-6 at 28.)
Given the December 23, 2009, physician's order discontinuing the crutches at that time, Plaintiff appears to be mistaken as to when Atkinson saw him hop to the front of his cell. (Dkt. No. 49.)
Plaintiff claims that as a result of having his crutches taken away, he fell on several occasions, exacerbating his pain and the injury to his leg. Id. at ¶ 53. Plaintiff also claims that as a result of his crutches being taken away, the calcium forming in the calf of his left leg broke and drained down to his left ankle, and that as a result of the metal plate and screws inserted in his left leg, he has ongoing pain and suffers by putting pressure on his left foot and leg, forcing him to hop around on his right leg. Id. at ¶¶ 56-57. Plaintiff asserted additional claims against Atkinson and Drs. D'Acevedo and Roe at his deposition, namely, failure to provide adequate pain medication and failure to recommend or perform surgery to remove the metal plate from his leg. (Dkt. No. 48-6 at 28.)
Atkinson has explained in her Affidavit that as an RN, her authority with regard to Plaintiff's medical treatment was limited. (See generally Dkt. No. 48-4.) According to Atkinson, as an RN at Upstate, her duties generally include, among other things: "(1) Conducting physical examinations of inmates when requested and/or required[;] (2) Maintaining medical records documenting subjective complaints and objective medical findings; (3) Providing medical services, triage and over the counter medication to inmates, as warranted or prescribed by physicians[;] and (4) Facilitating the inmates' treatment as directed by the facility physicians." Id. at ¶ 2.
Atkinson has no personal authority to discontinue an inmate's facility-issued crutches, prescribe pain medication, or order or authorize an inmate to be seen by an outside specialist or surgeon. Id. at ¶ 5. Those tasks can only be completed by a DOCCS physician, and as an RN, Atkinson's only role would be to facilitate the physician's order. Id. at ¶ 6. For example, when a physician orders that an inmate's use of medical equipment be discontinued, Atkinson's only role as an RN would be to record the order and possibly make arrangements with security staff to remove the equipment. Id. When a physician prescribes pain medication for an inmate, Atkinson's only role, as an RN, is to deliver the medication to the inmate. Id. When a physician refers an inmate for treatment by an outside medical specialist, as an RN, Atkinson's only role would be to record the order and facilitate the administrative steps necessary to act on the physician's referral. Id.
II. APPLICABLE LEGAL STANDARDS
Under Federal Rule of Civil Procedure 56, summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Id. at 273 (citations omitted). The nonmoving party must do more than "rest upon the mere allegations . . . of [the plaintiff's] pleading" or "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 & n.11 (1986). Rather, a dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008).
When a plaintiff fails to respond to a defendant's motion for summary judgment, "[t]he fact that there has been no [such] response . . . does not . . . mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, the Court must (1) determine what material facts, if any, are undisputed in the record; and (2) assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the defendants. See Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Grp., Inc., 140 F. Supp. 2d 229, 232 (N.D.N.Y. 2001); L.R. 7.1(b)(3).
Where a plaintiff has failed to properly respond to a defendant's Statement of Material Facts (its "Rule 7.1 Statement"), the facts as set forth in that Rule 7.1 Statement will be accepted as true to the extent that (1) those facts are supported by the evidence in the record, and (2) the non-moving party, if he is proceeding pro se, has been specifically advised of the potential consequences of failing to respond to the movant's motion for summary judgment. See L.R. 7.1(a)(3); Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); Champion, 76 F.3d at 486.
III. ANALYSIS
Atkinson claims she is entitled to summary judgment on the ground that she was not personally involved in the claimed deliberate indifference to Plaintiff's serious medical needs. (Dkt. No. 48-3 at 7-8.) The Eighth Amendment, made applicable to the states through the Fourteenth Amendment, prohibits "cruel and unusual punishments." U.S. Const. amend. VIII. The word "punishment" refers not only to deprivations imposed as a sanction for criminal wrongdoing, but also to deprivations suffered during imprisonment. Estelle v. Gamble, 429 U.S. 97, 102-03 (1976). Punishment is cruel and unusual if it involves the unnecessary and wanton infliction of pain or if it is incompatible with "'the evolving standards of decency that mark the progress of a maturing society.'" Id. at 102 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). Thus, the Eighth Amendment imposes on prison officials the duty to "provide humane conditions of confinement" for prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In fulfilling this duty, prison officials must ensure, among other things, that inmates receive adequate medical care. Id. (citing Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).
To state an Eighth Amendment claim for denial of adequate medical care, an inmate must show that prison officials acted with deliberate indifference to his serious medical needs. Estelle, 429 U.S. at 104. The inmate must demonstrate (1) a serious medical condition and (2) deliberate indifference. Farmer, 511 U.S. at 834-35; Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). The first prong is an objective standard and considers whether the medical condition is sufficiently serious. Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003). The Second Circuit has stated that a medical need is serious if it presents "a condition of urgency that may result in degeneration or extreme pain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citations omitted). Relevant factors to consider when determining whether an alleged medical condition is sufficiently serious include, but are not limited to: (1) the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; (2) the presence of a medical condition that significantly affects an individual's daily activities; and (3) the existence of chronic and substantial pain. Id. at 702-03.
The second prong is a subjective standard requiring a plaintiff to demonstrate that the defendant acted with the requisite culpable mental state similar to that of criminal recklessness. Wilson v. Seiter, 501 U.S. 294, 301-03 (1991); Hathaway, 37 F.3d at 66. A plaintiff must demonstrate that a defendant acted with reckless disregard to a known risk of substantial harm. Farmer, 511 U.S. at 836. Thus, to establish deliberate indifference, an inmate must prove that (1) a prison medical care provider was aware of facts from which the inference could be drawn that the inmate had a serious medical need; and (2) the medical care provider actually drew that inference. Id. at 837; Chance, 143 F.3d at 702. The inmate then must establish that the provider consciously and intentionally disregarded or ignored that serious medical need. Farmer, 511 U.S. at 835.
"[D]eliberate indifference is more substantial than mere disagreement over a course of treatment, negligence or even medical malpractice." Santana v. Watson, No. 13 Civ. 1549 (SAS), 2014 WL 1803308, at * 5, 2014 U.S. Dist. LEXIS 62628, at * 24 (S.D.N.Y. May 6, 2014) (dismissing claim on summary judgment where, "[a]t most, the[ ] facts show that [the nurse] knew [plaintiff] had a prescription for a CPAP machine and failed to follow up on his CPAP request in a timely manner," but "[t]here [was] no indication that she deliberately denied access . . . , or that she knew that the failure to provide a CPAP machine posed an excessive risk to [plaintiff's] health or safety.").
The Court will provide Plaintiff with a copy of the unpublished decision in accordance with the Second Circuit decision in LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
The Court finds that Plaintiff's broken leg, which required surgery involving the insertion of two metal plates and fifteen screws, constituted an injury that a "reasonable doctor would find important and worthy of treatment," Chance, 143 F.3d at 702-03, and thus falls within the definition of a "serious medical condition." However, the evidence in the summary judgment record establishes that Atkinson did not act with deliberate indifference. Atkinson, an RN, was not authorized to make medical decisions concerning Plaintiff's course of treatment, including discontinuing his facility-issued crutches, prescribing pain medication, or ordering him to see a surgeon. (Dkt. No. 48-4 at ¶ 5.) The evidence reveals that Atkinson did nothing more than follow through on Dr. D'Acevedo's orders with regard to discontinuing Plaintiff's use of crutches, wheelchair, and a splint by forwarding the splint to the facility arsenal for destruction and advising security that Plaintiff's crutches had been retrieved. Id. at ¶¶ 9-10; Dkt. No. 49.
In light of the evidence establishing Atkinson's limited authority and limited role in Plaintiff's medical care, I find that no reasonable factfinder could conclude that she acted with deliberate indifference in depriving him of adequate medical care and recommend that she be granted summary judgment.
ACCORDINGLY, it is
RECOMMENDED that Defendant Atkinson's motion for summary judgment (Dkt. No. 48) be GRANTED , and that judgment be entered in her favor; and it is hereby
ORDERED, that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with a copy of the unpublished decision in Santana v. Watson, No. 13 Civ. 1549 (SAS), 2014 WL 1803308 (S.D.N.Y. May 6, 2014) in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). Dated: September 1, 2015
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge