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finding that when there was no indication that the plaintiff followed up with the defendant about whether his specialist appointment had been scheduled or that the defendant was aware that the appointment had not been promptly scheduled, the defendant "could not have been expected to know that a risk of substantial harm existed"
Summary of this case from Norman v. Mount Vernon Hosp.Opinion
13-cv-04727 (ENV) (LB)
2019-02-22
Thomas SINGLETARY, Plaintiff, v. Dr. Dennis RUSSO & Dr. Vincent T. Geraci, Defendants.
Nancy Gordon Milburn, Anthony D. Boccanfuso, Lucy Sarah McMillan, Muriel S. Raggi, Tanya Eleni Kalivas, Arnold & Porter Kaye Scholer LLP, New York, NY, for Plaintiff. Arlene S. Zwilling, Suffolk County Attorney, Hauppauge, NY, for Defendants.
Nancy Gordon Milburn, Anthony D. Boccanfuso, Lucy Sarah McMillan, Muriel S. Raggi, Tanya Eleni Kalivas, Arnold & Porter Kaye Scholer LLP, New York, NY, for Plaintiff.
Arlene S. Zwilling, Suffolk County Attorney, Hauppauge, NY, for Defendants.
MEMORANDUM & ORDER
VITALIANO, D.J.
On August 19, 2013, plaintiff Thomas Singletary, currently incarcerated at Attica Correctional Facility, commenced this action, pursuant to 42 U.S.C. § 1983, seeking damages and declaratory relief. He alleged violations of his constitutional rights in the course of his medical treatment while detained at the Suffolk County Correctional Facility ("SCCF"). Compl. (ECF No. 1 ). After a series of amended pleadings, plaintiff's claims now lie solely against Dr. Vincent Geraci and Dr. Dennis Russo. Third Am. Compl. (ECF No. 45 ). These defendants have moved for summary judgment. For the reasons set forth below, their motion is granted in its entirety.
Background
I. Pre-Trial Detention
From January to May 2013, Singletary was tried in Suffolk County Supreme Court for murder in the second degree, arson in the second degree, and reckless endangerment in the first degree before Justice James Hudson and a jury. Defs.' Statement Pursuant to Rule 56.1 ¶¶ 1-2 (ECF No. 73-1) ("Defs.' 56.1"). He was convicted of each of these offenses, and, on June 19, 2013, Judge Hudson sentenced him to 96 years to life. Id. He is now serving his sentence in state custody. Id. ¶ 1. Until he was transferred to state custody, Singletary was detained at SCCF. Id. ¶ 3. His claims here arise from his medical treatment there.
II. Treatment at the Jail Medical Unit
During Singletary's confinement at SCCF, defendants were physicians practicing in the Jail Medical Unit ("JMU"). Id. ¶ 4. Dr. Geraci was also the medical program administrator there. Id. ; Tr. Dep. Vincent D. Geraci, Ex. 2, at 15:5 (ECF No. 73-35) ("Geraci Tr."). As early as May 25, 2012, Dr. Geraci treated Singletary for ulcerative colitis, Geraci Tr. at 144:11-21, which is a disease of the colon that is episodically symptomatic, Dorland's Illustrated Medical Dictionary (30th ed. 2003). Additionally, as early as December 6, 2012, Dr. Russo's records reflect that he was aware of Singletary's condition. Tr. Dep. Dennis Russo, Ex. 4, at 51:14-17 ("Russo Tr."). On March 29, 2013, Singletary visited the JMU, complaining of an abscess on the right axilla. Defs.' 56.1 ¶ 5; JMU Medical Records (Mar. 29, 2013), Ex. F. His medical records for the visit reflect that he was taking several medications: Asacol (400 mg in the morning and at noon, 800 mg in the evening), Zantac (150 mg twice a day), and Rowasa (60 ml enema three times a week). JMU Medical Records (Mar. 29, 2013), Ex. F. At this visit, plaintiff was also prescribed Betadine (5 ml twice a day for 7 days) and Cipro (500 mg every 12 hours). Id.
a. Flare-Ups of Ulcerative Colitis
Despite the medications prescribed, on April 8, 2013, during his trial, Singletary's attorney, Daniel Russo, told Judge Hudson that his client had not been receiving his medications because he was attending the trial. Defs.' 56.1 ¶ 6. He further advised that Singletary had seen blood in his stool for several days. Id. Judge Hudson directed that Singletary get immediate medical attention. Trial Tr., Ex. G, at 205:4. When Singletary returned to SCCF, he was seen at the JMU by Dr. Russo and Nurse Devin Calandra. Defs.' 56.1 ¶ 7. The record of the visit indicates that Singletary reported "streaks of blood and frank blood on the [toilet paper] with some mucouse [sic ] but no bleeding into the bowl." JMU Medical Records (Apr. 8, 2013), Ex. H., at 1.
The trial would continue, but, on May 3, 2013, Attorney Russo informed Judge Hudson that Singletary would not return to SCCF in time to get his medication that evening, and the judge again marked Singletary's paperwork for medical attention. Defs.' 56.1 ¶ 8. Singletary's medical records do not indicate that he received treatment that day. JMU Medical Records (May 3, 2013), Ex. 3. On May 7, 2013, Attorney Russo informed Judge Hudson that plaintiff was "having what sounds like some more severe medical issues," and Judge Hudson again marked his paperwork for immediate medical attention. Defs.' 56.1 ¶ 9.
That evening, Singletary was seen at the JMU by Dr. Russo, who noted that Singletary had passed blood six to eight times that day. Id. ¶ 10. Dr. Russo further recorded that, in his opinion, Singletary's medications were not effective and that he needed to see an outside specialist. Id. Dr. Russo completed a request to schedule a specialist consultation, marking it "urgent." Id. He also offered Singletary the option of going to the emergency room, but Singletary did not go. Id. There is some dispute as to the reason for his not going, in particular as to whether he made the decision independently or on Dr. Russo's recommendation. See id. ; Pl.'s Rule 56.1 Resp. & Counterstatement ¶ 10 (ECF No. 73-33) ("Pl.'s 56.1"). At his deposition, however, Singletary testified that he did not go to the emergency room "[b]ecause [he] had lengthy days at trial." Tr. Dep. Thomas Singletary, Ex. M, at 143:10-25 (ECF No. 73-14) ("Singletary Tr."). Subsequently, the medical clerk's office of JMU made an appointment for Singletary to see Dr. Brett Ruffo, a private colorectal surgeon, nearly one month later, on June 4, 2013. Defs.' 56.1 ¶ 12.
b. Specialist Visit
After another visit to the JMU, where Desitin was added to Singletary's medications, id. ¶ 13., Singletary saw Dr. Ruffo, as scheduled, id. ¶ 14. Dr. Ruffo attempted to perform a diagnostic sigmoidoscopy, but the procedure caused severe pain, prompting Singletary to ask him to stop it. Id. As a result, Dr. Ruffo was not able to recommend any changes to Singletary's medications, but he did recommend "full colonoscopic evaluation to fully biopsy evaluate the rectum and the colon." Id. ; Medical Records of Dr. Brett Ruffo, Ex. P., at 3. A colonoscopy could not be performed at the JMU because Dr. Ruffo only performs colonoscopies in the hospital, given that complete sedation and full mechanical valve preparation are required. Defs.' 56.1 ¶¶ 16-17.
On June 16, 2013, Singletary filed a Medical Grievance Form with the JMU, in which he complained of "stomach pangs," as well as "rectal bleeding with mucus and blood in stool," and noted that he had "been having this problem for over two months." Pl.'s 56.1 ¶ 19; Compl., Ex. 1. On June 25, 2013, Singletary again filed a Medical Grievance Form, complaining that "[he] put in another grievance 6.16.13 concerning [his] medical issues and was not seen." Defs.' 56.1 ¶ 19; Compl., Ex. 2. Dr. Geraci subsequently saw the second form and wrote "S/C" on it to indicate that Singletary was to be placed on sick call to be seen. Defs.' 56.1 ¶ 20. However, the medical record is silent as to whether he was ever seen as ordered.
III. Transfer
On July 1, 2013, after his conviction, Singletary was transferred from SCCF and into the custody of the New York State Department of Corrections ("DOCS"). Id. ¶ 22. In connection with this transfer, Nurse Paula Mecagni, of the SCCF JMU, completed a health transfer information form. Id. Although JMU policy required that this form include the prisoner's "anticipated future healthcare needs," Singletary's form did not contain a complete list of medications or indicate that Dr. Ruffo had recommended additional care, including a colonoscopy. Pl.'s 56.1 ¶¶ 80-82; Transfer Form, Ex. 13.
Finally, despite Dr. Ruffo's recommendation of June 4, 2013, it was only on January 23, 2015 that Singletary underwent a colonoscopy, at which time Dr. Sekou Rawlins, who performed the procedure, noted that Singletary's colitis was in remission. Defs.' 56.1 ¶ 26; Medical Records of Dr. Sekou Rawlins (Jan. 23, 2015), Ex. AA, at 2.
IV. Procedural History
On August 19, 2013, Singletary filed the instant action pro se . He was granted leave to proceed in forma pauperis , but Judge Gleeson dismissed the complaint against four defendants entirely and dismissed claims against Dr. Geraci that were based solely on a theory of supervisory liability. Plaintiff filed an amended complaint, on October 15, 2013. The Court again dismissed the complaint against several defendants. A second amended complaint followed, as did the appointment of pro bono counsel. On April 5, 2016, Singletary filed his third amended complaint; on July 12, 2017, defendants moved for summary judgment.
Applicable Procedural Law
A district court must grant summary judgment if "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) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A court's responsibility in assessing the merits of a summary judgment motion is not to try issues of fact, but merely to "determine whether there are issues of fact to be tried." Sutera v. Schering Corp. , 73 F.3d 13, 16 (2d Cir. 1995) (quoting Katz v. Goodyear Tire & Rubber Co. , 737 F.2d 238, 244 (2d Cir. 1984) ); see also Kaytor v. Elec. Boat Corp. , 609 F.3d 537, 545 (2d Cir. 2010) (noting that, on summary judgment, "the court ‘may not make credibility determinations or weigh the evidence’ " (emphasis omitted) (quoting Reeves v. Sanderson Plumbing Prods. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ) ).
The moving party bears the burden of demonstrating that there is no genuine dispute as to any material fact, see Jeffreys v. City of New York , 426 F.3d 549, 553 (2d Cir. 2005), and the motion court will resolve all ambiguities and draw all permissible factual inferences in favor of the party opposing the motion, see Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc. , 391 F.3d 77, 83 (2d Cir. 2004) ; Gummo v. Village of Depew , 75 F.3d 98, 107 (2d Cir. 1996) ("If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper."); Heilweil v. Mount Sinai Hosp. , 32 F.3d 718, 721 (2d Cir. 1994) (noting that summary judgment can be granted "only when no rational jury could find in favor of the nonmoving party"); Brooklyn Heights Ass'n, Inc. v. Nat'l Park Serv. , 818 F.Supp.2d 564, 567 (E.D.N.Y. 2011) ("A court must construe all evidence in the light most favorable to the nonmoving party ....").
Whether a fact is material is dictated by the substantive law governing the claim on which summary judgment is sought. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("As to materiality, the substantive law will identify which facts are material. Only disputes over the facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."); Heilweil , 32 F.3d at 721 ("Only by reference to the substantive law can it be determined whether a disputed fact is material to the resolution of the dispute."). Thus, where the moving party "will bear the burden of proof at trial," that party bears the initial procedural burden at summary judgment of demonstrating that undisputed facts "establish the existence of [each] element essential to that party's case." Celotex Corp. , 477 U.S. at 322-23, 106 S.Ct. 2548.
If the moving party meets its initial burden, the burden shifts to the nonmoving party. See George v. Reisdorf Bros., Inc. , 410 F. App'x 382, 384 (2d Cir. 2011) (summary order). The nonmoving party may not rely solely on "conclusory allegations or unsubstantiated speculation" in order to defeat a properly supported motion for summary judgment. Scotto v. Almenas , 143 F.3d 105, 114 (2d Cir. 1998). Instead, the nonmoving party can prevail by "designat[ing] specific facts showing that there is a genuine issue for trial." Celotex Corp. , 477 U.S. at 324, 106 S.Ct. 2548 (internal quotation marks omitted); see also Fed. R. Civ. P. 56(c). If the evidence favoring the nonmoving party is "merely colorable, or is not significantly probative, summary judgment may be granted." Anderson , 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Moreover, when "the nonmoving party has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof," summary judgment should be granted. Celotex Corp. , 477 U.S. at 323, 106 S.Ct. 2548.
Discussion
The federal civil rights law, at 42 U.S.C. § 1983, creates a cause of action against "any person who, acting under color of state law, deprives another of a right, privilege or immunity secured by the Constitution or laws of the United States." Sykes v. James , 13 F.3d 515, 519 (2d Cir. 1993). At issue in this case are the conditions of Singletary's pretrial detention at SCCF, which are governed by the Due Process Clause of the Fourteenth Amendment, see Benjamin v. Fraser , 343 F.3d 35, 49 (2d Cir. 2003) (citing Bell v. Wolfish , 441 U.S. 520, 535-36 & n.16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ), overruled on other grounds by Caiozzo v. Koreman , 581 F.3d 63, 70 (2d Cir. 2009), overruled by Darnell v. Pineiro , 849 F.3d 17, 35 (2d Cir. 2017).Plaintiff sets out five incidents in which defendants allegedly deprived him of his constitutional rights. First, he alleges a deprivation arising from defendants' "fail[ure] to refer [him] to a specialist between April 8, 2013 when Defendants were aware of [his] flare-up, and May 7, 2013." Pl.'s Mem. Opp'n at 9 (ECF No. 73-47) ("Opp'n"). Next, he contends that Drs. Russo and Geraci unconstitutionally "fail[ed] to ensure that [he] saw an outside specialist for nearly a month after the referral marked ‘urgent’ was made on May 7, 2013." Id. Third, he argues that his rights were violated when the doctors "fail[ed] to follow up with Dr. Ruffo, the outside specialist referred by Dr. Russo and approved by Dr. Geraci, or implement any of Dr. Ruffo's recommendations." Id. Fourth, he claims that defendants illegally "fail[ed] to respond to two medical grievances." Id. Finally, he alleges a violation arising from defendants' failure to report "any information" about Dr. Ruffo's recommendations or plaintiff's condition, upon his transfer to state custody. Id.
I. Personal Involvement
A fundamental inquiry in a § 1983 case, and as to each defendant, is whether that defendant was personally involved in the alleged constitutional violation. "It is well settled in this Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.’ " Wright v. Smith , 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield , 950 F.2d 880, 885 (2d Cir. 1991) ). In accord with this standard, § 1983 liability requires a showing that "each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal , 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). If no reasonable jury could find that a particular defendant was personally involved in causing a constitutional violation alleged by plaintiff, then summary judgment should be awarded to that defendant.
a. Dr. Russo's Involvement
It is undisputed that Dr. Russo personally treated Singletary for his ulcerative colitis on at least two occasions. Defs.' 56.1 ¶¶ 7, 10. Dr. Russo also treated Singletary for a boil on December 6, 2012, prior to the alleged constitutional violation, at which time he was made aware of Singletary's ulcerative colitis. Russo Tr. at 51:1-17. The issue, then, is not whether Dr. Russo was personally involved in Singletary's treatment, because he was, but whether he was personally involved in the failure to provide treatment Singletary claims he should have received.
Constitutional liability can attach for the failure to provide care in certain circumstances. "Where a prison [or jail] doctor denies medical treatment to an inmate, that doctor is personally involved in the alleged constitutional violation." Price v. Reilly , 697 F.Supp.2d 344, 366 (E.D.N.Y. 2010) (citing McKenna v. Wright , 386 F.3d 432, 437 (2d Cir. 2004) ); see also Chambers v. Wright , No. 05 Civ. 9915, 2007 WL 4462181, at *3 (S.D.N.Y. Dec. 19, 2007) ("Prison doctors who have denied medical treatment to an inmate are ‘personally involved’ ...." (citing McKenna , 386 F.3d at 437 ) ). Indeed, the mere recognition of a claim for "indifference," see, e.g. , Darnell , 849 F.3d at 29, suggests that inaction can create liability and, therefore, satisfies the personal involvement test. Cf. Indifferent , Merriam-Webster, http://www.merriam-webster.com/dictionary/indifferent (defining "indifferent" as, inter alia , "marked by a lack of interest" or "characterized by lack of active quality" (emphasis added) ). Moreover, the applicable mens rea standard expressly refers to "reckless[ ] fail[ure] to act." Darnell , 849 F.3d at 35 (emphasis added). Consequently, as a threshold matter, to the extent that Dr. Russo failed to provide treatment, he may nonetheless be found to satisfy the personal involvement requirement. The Court will reserve its analysis of each specific alleged incident of inaction for its below discussion of the substantive law. By way of preview, the Court concludes, see infra Section II, that Dr. Russo was personally involved in the treatment related to the first three purported constitutional violations but not with respect to the alleged failure to respond to medical grievances or failure to complete the medical transfer form.
b. Dr. Geraci's Involvement
Dr. Geraci's personal involvement is more complicated. There is a fundamental question as to the continued viability of any claim for some sort of supervisory liability. Earlier in this litigation, Judge Gleeson dismissed Dr. Geraci as a defendant because "[s]upervisory status alone is not sufficient to impose liability." Mem. & Order at 4 (ECF No. 6 ) (citing Sturgis v. DeMarco , No. 13-cv-2125 (SJF), 2013 WL 2649842, at *3 (E.D.N.Y. June 7, 2013) ). To determine the effect of this decision following two amendments of the complaint and the appointment of counsel, the Court will analyze the relevant precedents rather than simply rely on Judge Gleeson's decision as the law of the case. The Second Circuit recognized the possibility of supervisory liability under § 1983 in Colon v. Coughlin , 58 F.3d 865, 873 (2d Cir. 1995). There, it held:
The personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.
Id. However, Colon was limited by the Supreme Court in Iqbal , where the Court held that "[a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct," 556 U.S. at 677, 129 S.Ct. 1937.
The Second Circuit has declined to decide what remains of Colon after Iqbal , see, e.g. , Doe v. Whidden , 557 F. App'x 71, 72 n.1 (2d Cir. 2014) (summary order), but district courts have reached the issue. For example, a court in the Southern District of New York concluded that "[o]nly the first and part of the third Colon categories pass Iqbal 's muster – a supervisor is only held liable if that supervisor participates directly in the alleged constitutional violation or if that supervisor creates a policy or custom under which unconstitutional practices occurred." Bellamy v. Mount Vernon Hosp. , No. 07 Civ. 1801 (SAS), 2009 WL 1835939, at *6 (S.D.N.Y. June 26, 2009), aff'd , 387 F. App'x 55 (2d Cir. 2010) (summary order). This, along with Judge Gleeson's earlier decision, suggests that to hold Dr. Geraci liable, Singletary must show that Dr. Geraci "participated directly in the alleged constitutional violation" or "created a policy or custom under which unconstitutional practices occurred," see Colon , 58 F.3d at 873. As plaintiff has not alleged that Dr. Geraci created a policy or custom under which the purported constitutional violations occurred, cf. Opp'n at 9 ("With respect to Dr. Geraci, there is ample evidence that he treated Mr. Singletary and was personally involved in his care ...."), the Court will focus only on Dr. Geraci's direct involvement, as opposed to his involvement in supervisory duties that may have impacted Singletary's care.
Dr. Geraci did not treat Singletary at any point, but there are several instances of his participation in Singletary's course of care. First, Dr. Geraci reviewed Singletary's medical intake form, on March 13, 2012, Geraci Tr. at 128:12-23, and renewed a prescription for Singletary's medication, on May 25, 2012, Geraci Tr. at 144:11-21. However, each of these occasions falls well before April 8, 2013, on which the first alleged constitutional violation began. Therefore, they cannot constitute personal involvement in the violation. Dr. Geraci also was involved in the relevant occurrences insofar as he saw at least one of Singletary's medical grievance forms. Pl.'s 56.1 ¶ 74; Geraci Tr. at 86:2-87:12. Upon seeing this form, Dr. Geraci wrote "S/C" on it, indicating that Singletary was to be put on sick call. Geraci Tr. at 86:2-87:12. Whether his failure to follow up constituted deliberate indifference is a substantive question addressed below, but this notation constitutes some personal involvement. Finally, there is a dispute as to whether Dr. Geraci was personally involved in the referral to Dr. Ruffo and the alleged failure to follow up on that referral. Dr. Geraci testified that he was responsible for reviewing requests for outside care, id. at 159:15-18, which suggests that he reviewed the request for Singletary to see a gastroenterologist. However, this was a mere supervisory function and thus represents the sort of involvement that is insufficient under Iqbal . Singletary does not claim that Dr. Geraci failed to approve the specialist visit or delayed approval of the referral. Rather, he seeks to hold Dr. Geraci liable solely on the ground that his subordinates did not promptly provide adequate care. As a result, Dr. Geraci was not personally involved, within the meaning of Iqbal , and cannot be liable with respect to this claim. Consequently, the only point of potential liability for Dr. Geraci is the alleged failure to follow up on a medical grievance form.
Plaintiff might argue that these events put Dr. Geraci on notice of Singletary's condition and created an obligation to follow up, but if that were the case, then the alleged constitutional violation would have occurred much earlier. Absent personal involvement following the flare-up of Singletary's symptoms on April 13, 2013, no liability can attach to Dr. Geraci's acts or omissions.
II. Deprivation of Adequate Medical Care
Plaintiff's claim arises from defendants' alleged "deliberate indifference to [his] serious medical needs." Opp'n at 7. Such a claim is subject to a two-pronged analysis. First, an objective prong of the test requires that "the alleged deprivation of adequate medical care must be ‘sufficiently serious.’ " Salahuddin v. Goord , 467 F.3d 263, 279 (2d Cir. 2006) (quoting Farmer v. Brennan , 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ). Second, a subjective prong of the test requires plaintiff to show that defendants "acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to [him] even though [they] knew, or should have known, that the condition posed an excessive risk to health or safety." Darnell , 849 F.3d at 35. The Court examines these prongs sequentially.
Salahuddin was decided under the Eighth Amendment, rather than the Fourteenth Amendment, but the first prong of the deliberate indifference inquiry is the same under both amendments; only the second prong, focusing on mens rea , differs. See Darnell , 849 F.3d at 35-36.
a. Objective Prong
The objective prong of the inquiry is itself divided into two inquiries. "The first inquiry is whether the prisoner was actually deprived of adequate medical care." Salahuddin , 467 F.3d at 279. The second inquiry "asks whether the inadequacy in medical care [was] sufficiently serious." Id. at 280.
i. Actual Deprivation
With regard to whether plaintiff suffered an actual deprivation, "the prison official's duty is only to provide reasonable care." Id. at 279 (citing Farmer , 511 U.S. at 844-47, 114 S.Ct. 1970 ). "[P]rison officials who act reasonably ... cannot be found liable," Farmer , 511 U.S. at 845, 114 S.Ct. 1970, but "failing ‘to take reasonable measures’ in response to a medical condition can lead to liability," Salahuddin , 467 F.3d at 280 (quoting Farmer , 511 U.S. at 847, 114 S.Ct. 1970 ). Therefore, the issue is whether defendants provided reasonable care here, a question that is disputed by the parties' conflicting expert reports.
Plaintiff claims that he was first deprived of a constitutionally protected right when defendants failed to refer him to a specialist between April 8, 2013 and May 7, 2013. As noted above, Singletary has not shown that Dr. Geraci had sufficient personal involvement to face liability, given that Dr. Geraci never treated him during this period of time. Although Dr. Russo may have been personally involved, insofar as he treated Singletary and waited one month before referring him to a specialist, this does not constitute a deprivation of care. Each party relies on a single expert report opining as to whether this failure constituted a deprivation of care. Singletary's expert, Dr. Stuart I. Finkel, makes only the general claim that "[a]s [Singletary's] treating physician, it was [Dr. Russo's] obligation to ensure ... that his patient was referred for necessary and appropriate medical care, including timely consultations with the appropriate specialist(s)." Decl. of Stuart I. Finkel at 6 (ECF No. 73-31, at 9) ("Finkel Decl."). Contrarily, defendants' expert, Dr. Frank T. Sconzo, speaks specifically to the one-month delay, from April to May, in referring Singletary to a specialist. Dr. Sconzo opines that after Singletary's JMU visit, in April 2013, "no urgent treatment [was] needed." Decl. of Frank. T. Sconzo at 1 (ECF No. 73-49, at 1) ("Sconzo Decl."). In light of the parties' sole reliance on these reports, a reasonable jury could not find that a one-month delay in referring Singletary to a specialist constituted a deprivation of adequate medical care. Although Dr. Finkel explained that Dr. Russo was bound to refer Singletary to a specialist in a timely fashion when necessary, he did not conclude that Singletary needed urgent care as of April 8, 2013 or that a one-month delay was a failing of constitutional magnitude. Plaintiff has not produced evidence to meet defendants' showing, and defendants are thus entitled to summary judgment with respect to this alleged deprivation.
Singletary's next alleged deprivation arises from defendants' failure to ensure that he saw a specialist after Dr. Russo made a referral marked "urgent." Singletary, as mentioned earlier, has adequately demonstrated the personal involvement of only Dr. Russo, given that Dr. Geraci played only a supervisory role in the referral. Neither the briefing nor the expert reports speak directly to this whether Dr. Russo's failure constituted a deprivation of adequate medical care. However, courts in this circuit have held that failure to see that a detainee receives a prescribed course of treatment, resulting in delay, may constitute a constitutional deprivation. See, e.g. , Price , 697 F.Supp.2d at 361-62 (holding that delay in arranging a kidney transplant test can constitute deliberate indifference); Lloyd v. Lee , 570 F.Supp.2d 556, 569 (S.D.N.Y. 2008) ("A reasonable jury could infer deliberate indifference from the failure of the doctors to take further steps to see that [plaintiff] was given an MRI [after those doctors ordered the test]."). Notably, in Lloyd , the court denied summary judgment on a deliberate indifference claim, even though the defendants had submitted and re-submitted MRI request forms. Lloyd , 570 F.Supp.2d at 569. Therefore, although Dr. Russo submitted a referral to an outside specialist and marked it urgent, this is not a complete defense. Consequently, he is not entitled to summary judgment on the ground that no actual deprivation had occurred. This claim, however, is stranded there since, for reasons discussed later, Singletary falters at the subjective prong and summary judgment for defendants is awarded on that basis. See infra Section II(b).
The third purported constitutional violation occurred when Dr. Russo and Dr. Geraci failed to follow up with Dr. Ruffo and to implement his recommendations. For plaintiff, Dr. Finkel opines that this constituted a deprivation. Finkel Decl. at 7. Defendants' expert did not speak directly to this issue, although he alluded to an "appropriate specialist consult." Sconzo Decl. at 2. With only this minimal discussion and conflicting expert opinions, the Court cannot grant summary judgment on this ground. Moreover, "[f]ailure to heed a physician's recommendation ... may in some circumstances constitute deliberate indifference on the part of prison officials." Demata v. N.Y.S. Corr. Dept. of Health Servs. , 198 F.3d 233, 1999 WL 753142, at *6 (2d Cir. Sept. 17, 1999) (unpublished table decision) (citing Kaminsky v. Rosenblum , 929 F.2d 922, 927 (2d Cir. 1991) ). Price is particularly instructive with respect to this claim. There, the court identified deliberate indifference when, after doctors referred a detainee for an x-ray study, they failed to follow up on the study and thus failed to learn that additional tests were needed. Price , 697 F.Supp.2d at 364. Failing to follow up on Singletary's referral to Dr. Ruffo and consequently failing to implement his recommendations is closely analogous, and a reasonable jury could find it to be an actual deprivation.
Next, Singletary alleges that he was denied adequate care when defendants failed to respond to two medical grievance forms. However, he has made no showing that Dr. Russo saw these forms or was responsible for responding to such forms. Absent personal involvement, there can be no § 1983 liability, so Dr. Russo is entitled to summary judgment with respect to this claim. Dr. Geraci unquestionably saw the second medical grievance form, and there is a dispute as to whether he saw the first form. Therefore, there is a triable issue as to Dr. Geraci's personal involvement. There is a further triable issue as to whether his actions constituted a deprivation of adequate medical care. Dr. Finkel opines explicitly that Dr. Geraci's referral of Singletary to sick call was an inadequate response to the second grievance form, see Finkel Decl. at 7, whereas Dr. Sconzo does not directly address this incident. In Price , failure to respond to repeated complaints was held to be a form of deliberate indifference. Price , 697 F.Supp.2d at 363. Finally, plaintiff alleges that an actual deprivation occurred when defendants failed to prepare a complete medical form upon his transfer from SCCF to state custody. Defendants first argue that there is no right to the completion of a medical information form upon transfer to a different custodial authority. Defs.' Mem. Supp. at 26 (ECF No. 29-30 ). However, although they have declined to impose liability, given the lack of resulting harm, courts in this circuit have several times recognized that lapses in recordkeeping could constitute deprivations of adequate medical care. See, e.g. , Davis v. McCready , No. 14-cv-6405 (GHW), 2017 WL 627454, at *3 n.3 (S.D.N.Y. Feb. 15, 2017) ("[L]apses in proper medical record-keeping can support a deliberate indifference claim under the proper circumstances ...."); Thomas v. Tisch , No. 08-cv-0400 (JFB), 2009 WL 701009, at *7, at *18-19 (E.D.N.Y. Mar. 11, 2009) ("[T]he Court declines to conclude, as a matter of law, ... that ‘not forwarding the plaintiff's medical records’ or medication ... cannot plausibly rise to the level of a ‘deliberate indifference’ ...."). Furthermore, defendants identify no law requiring a constitutional right to be defined as specifically as the right to the completion of a medical information form. A detainee's right to adequate medical care has been indisputably established, see Estelle v. Gamble , 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and if failing to complete a form constitutes a deprivation of such care, then a constitutional right has been violated.
That said, the personal involvement requirement still applies. There is no indication that these defendants were involved with the completion of this form, which was prepared by Nurse Paula Mecagni. Plaintiff's expert, however, suggests that each defendants' alleged failures to follow up on Singletary's condition led to the incompleteness of the transfer form. Finkel Decl. at 7. Therefore, there appears to be a triable issue as to whether a deprivation occurred. But, as to these issues, and all those issues found triable up to this point, they are immaterial if defendants succeed on another issue that is essential to Singletary's claims. Failure of a claimant to survive summary judgment on a matter essential to his claim renders all other issues immaterial. See Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ; Celotex Corp. , 477 U.S. at 323, 106 S.Ct. 2548. As will be shown below, that is Singletary's fate on all of his claims brought against Dr. Geraci and Dr. Russo.
Plaintiff's expert contends that defendants were reckless insofar as they did not ensure the complete and accurate transfer of Singletary's medical records. He does not refer to the specifics of the DOCS form that was completed but rather appears to believe that the doctors were under generally applicable professional duties upon the transfer of a patient. However, although this framing of Dr. Finkel's opinion might overcome defendants' argument that they are not liable because they were not involved in completing the form, it would not overcome the issue that the record does not reveal that defendants were even aware that Singletary was being transferred. Plaintiff does not contend that defendants were under a duty to monitor his whereabouts. Therefore, if they were unaware of his pending transfer, they cannot be liable for failure to transmit his medical records upon said transfer. This issue is discussed further below, with respect to the mens rea prong.
ii. Serious Deprivation
In assessing the seriousness of a deprivation, another showing required of a claimant that is essential to relief, the question is "what harm, if any, the inadequacy has caused or will likely cause the prisoner." Salahuddin , 467 F.3d at 280 (citing Helling v. McKinney , 509 U.S. 25, 32-33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) ). A prisoner's medical needs are "considered serious if the failure to treat [his] condition could result in further significant injury or the unnecessary and wanton infliction of pain." Estelle , 429 U.S. at 104, 97 S.Ct. 285. "Objectively, the alleged deprivation must be ‘sufficiently serious,’ in the sense that ‘a condition of urgency, one that may produce death, degeneration, or extreme pain’ exists." Hathaway v. Coughlin , 99 F.3d 550, 553 (2d Cir. 1996) (quoting Hathaway v. Coughlin , 37 F.3d 63, 64 (2d Cir. 1994) ). The Court now considers the question of seriousness with respect to those claims that have, thus far, survived summary judgment: Dr. Russo's failure to follow up with Dr. Ruffo, Dr. Geraci's failure to respond to medical grievance forms, and defendants' failure to ensure the completion of a medical transfer form.
When a prisoner challenges "a temporary delay or interruption in the provision of otherwise adequate medical treatment, it is appropriate to focus on the challenged delay or interruption in treatment." Smith v. Carpenter , 316 F.3d 178, 185 (2d Cir. 2003). Conversely, "when the prisoner alleges that prison officials have failed to provide general treatment for his medical condition," a court must focus on the harm of the "underlying ‘serious medical condition.’ " Id. at 185-86 (citing Chance v. Armstrong , 143 F.3d 698, 702 (2d Cir. 1998) ). Here, plaintiff was provided some treatment for his ulcerative colitis. It is undisputed that plaintiff was seen at the JMU several times and received medications for his condition, except when he missed them on the days of his trial. Moreover, plaintiff ultimately saw a specialist, even though his visit was untimely. Therefore, it is not the case that "prison officials ... failed to provide general treatment" but rather that plaintiff suffered "a temporary delay or interruption in the provision of otherwise adequate medical treatment." See id. As a result, the Court must analyze "the particular risk of harm faced by [plaintiff] due to the challenged deprivation of care, rather than the severity of [his] underlying medical condition." Id. at 186.
Nonetheless, although this standard is less favorable to Singletary than the alternative, there is at least a triable issue as to whether Singletary suffered a sufficiently serious deprivation. Singletary unquestionably suffered a painful condition for several months following the alleged onset of the constitutional violation. The undisputed facts do not settle whether prompter medical treatment would have avoided this pain. Although the colonoscopy that was ultimately conducted found Singletary's colitis to be in remission, the disease goes in cycles of activity and remission, and an earlier colonoscopy, performed while Singletary was suffering a flare-up, might have led to medical changes that could have alleviated the condition. The same uncertainty exists with regard to the implementation by JMU of the specialist's recommendations. Although causation is unclear, because these disputed factual questions require medical expertise, summary judgment on this ground is not appropriate. Although Dr. Sconzo opined that the alleged inadequacies did not result in "permanent worsening of the patient UC," Sconzo Decl. at 2, he did not dispute that Singletary suffered significant pain due to his uncontrolled condition, even if the condition did not permanently worsen. Therefore, Singletary has adequately established harm at this stage.
Notwithstanding that finding, though, summary judgment is warranted on this ground with respect to plaintiff's last claim, regarding the medical transfer form. Singletary has not produced any evidence indicating that he suffered harm as a result of the incomplete form. In the complaint, Singletary alleged that, upon being transferred into the custody of DOCS, he was told that the transferee facility did not stock his medication, Third Am. Compl. ¶ 35, with the apparent implication that Singletary did not receive a travel supply of his prescribed medication. However, discovery did not yield evidence to support this allegation, and the allegation is conspicuously absent from plaintiff's 56.1 counterstatement. See Pl.'s 56.1 ¶¶ 79-83 (noting the incompleteness of the transfer form but failing to reference any adverse consequences). "[A] party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of his pleading ... but must set forth specific facts showing that there is a genuine issue for trial.’ " Anderson , 477 U.S. at 248, 106 S.Ct. 2505 (alteration in original) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co. , 391 U.S. 253, 288, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968) ). At this point, Singletary rests only on the bare allegations of the complaint to support the claim that the inaccurate medical transfer form led to a serious deprivation, entitling defendants to summary judgment.
Dr. Finkel asserts that the incompleteness of the transfer form "delay[ed] [Singletary's] receipt of appropriate evaluation and treatment," Finkel Decl. at 7, but without a factual basis in the record as to such delay, and there is none, Dr. Finkel's assertion is not a valid expert opinion but, rather, speculation – an inappropriate substitute for facts. Without such facts of record, not only is there no basis for Dr. Finkel's expert opinion on this score, there is no evidentiary basis for a reasonable jury to find that the incompleteness of the form caused harm to plaintiff. As a result, defendants are entitled to summary judgment on this claim.
b. Subjective Prong
Under the second prong of the deliberate indifference analysis, the Court must consider whether defendants "acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though [they] knew, or should have known, that the condition posed an excessive risk to health or safety." Darnell , 849 F.3d at 35. Under this standard, plaintiff "must prove that [defendants] acted intentionally or recklessly, and not merely negligently." Id. at 36. "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle , 429 U.S. at 106, 97 S.Ct. 285. Although the third amended complaint avers that "[d]efendants' intentional failure to provide appropriate care manifests deliberate indifference," Third Am. Compl. ¶ 40, plaintiff has adduced no evidence to this effect and does not refer to intentional misconduct in his brief.
As a consequence, the relevant mens rea is recklessness, which, for present purposes, "more closely resembles recklessness as the term is used in the civil context" and "does not require a defendant to be subjectively aware of the harm resulting from his acts or omissions," Feliciano v. Anderson , No. 15-cv-4106 (LTS) (JLC), 2017 WL 1189747, at *13 (S.D.N.Y. Mar. 30, 2017) (citing Darnell , 849 F.3d at 32 ); accord Kingsley v. Hendrickson , ––– U.S. ––––, 135 S.Ct. 2466, 2472-73, 192 L.Ed.2d 416 (2015). Under this standard, "a defendant possesses the requisite mens rea when he acts or fails to act under circumstances in which he knew, or should have known, that a substantial risk of serious harm to the pretrial detainee would occur." Feliciano , 2017 WL 1189747, at *13 (citing Darnell , 849 F.3d at 35 ). Here, each defendant was aware that Singletary suffered from ulcerative colitis. See, e.g. , Geraci Tr. at 144:11-21; Russo Tr. at 51:14-17. Moreover, each defendant was aware of the flare-up of Singletary's condition. Defs.' 56.1 ¶ 7; 20. The Court now turns to the issue of whether defendants' conduct amounted to recklessness with respect to each remaining claim. The arguments of the parties come to a head here.
The Court's analysis begins with Dr. Russo, who, as discussed earlier, actually deprived Singletary of care but only insofar as he did not ensure that Singletary saw a specialist after being referred and did not follow up with the specialist or implement his recommendations. However, there is no indication in the record that Dr. Russo was aware that the appointment with Dr. Ruffo had not been scheduled promptly. Although, in certain circumstances, failure to follow up may constitute deliberate indifference, cf., e.g. , Lloyd , 570 F.Supp.2d at 569 (holding that failure to follow up on an MRI request could be deliberate indifference), the present case is distinguishable from Lloyd and Price . In Lloyd , the plaintiff repeatedly complained to the physician who had referred him for an MRI during the nine months that passed before the MRI was scheduled. Id. at 562-63, 569. Similarly, the plaintiff in Price lodged repeated complaints about his doctor's failure to schedule a prescribed x-ray exam. Price , 697 F.Supp.2d at 363. These complaints sufficed to put the Lloyd and Price defendants on actual or constructive notice of the immediate medical needs of the respective plaintiffs.
Here, there is no indication that Singletary ever asked Dr. Russo whether an appointment with a specialist had been scheduled. Moreover, there is no evidence that Dr. Russo otherwise learned that the appointment had not been arranged. Absent any indication that the appointment had not been scheduled, Dr. Russo could not have been expected to know that a risk of substantial harm existed. Plaintiff was required to show that Dr. Russo "acted with a mental state more blameworthy than negligence," Lloyd , 570 F.Supp.2d at 567 (citing Hernandez v. Keane , 341 F.3d 137, 144 (2d Cir. 2003) ), and the record does not reveal any such culpability. Dr. Finkel opined that Dr. Russo was obliged to ensure that the specialist appointment was scheduled and that Dr. Russo was aware of the seriousness of plaintiff's condition. Finkel Decl. at 6-7. However, Dr. Finkel's report in no way suggests that Dr. Russo was aware that the appointment had not been scheduled or that he should have been aware of what was apparently a clerical error. Absent actual awareness or a duty to monitor scheduling matters, even when a patient does not complain, Dr. Russo was not reckless and is entitled to summary judgment.
The next issue centers on Dr. Russo's mens rea with respect to his failure to implement Dr. Ruffo's recommendations. Here, Dr. Russo claimed that he was not aware of Dr. Ruffo's recommendations. See Russo Tr. at 68:13-15. Although he admitted that it was his responsibility to follow up with Dr. Ruffo, id. at 69:6-9, falling below the medical standard of care or neglecting his vocational duties does not transform Dr. Russo's omission into a constitutional violation, see Estelle , 429 U.S. at 106, 97 S.Ct. 285 ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."). Even assuming, without deciding, that Dr. Russo was professionally obligated to follow up with Dr. Ruffo and was negligent for failing to do so, it does not follow that he was reckless or deliberately indifferent to Singletary's medical needs. Furthermore, no evidence suggests that Dr. Russo was aware of either the medical grievance forms or the medical transfer form. Nor does the record reveal that he had a duty to be aware of such forms. With respect to the transfer form, the record does not even indicate that Dr. Russo knew Singletary was to be transferred. Therefore, plaintiff has not adequately established Dr. Russo's mens rea , and summary judgment is appropriate on this claim too.
Plaintiff cites Hathaway 's holding that a "jury could infer deliberate indifference from the fact that [defendants] knew the extent of [plaintiff's] pain, knew that the course of treatment was largely ineffective, and declined to do anything more to attempt to improve [plaintiff's] situation," 37 F.3d at 68. However, as in Lloyd and Price , defendants' knowledge in Hathaway was based on a series of constant complaints. Id. The court noted that Hathaway was "not a case where a general practitioner merely referred a patient to a specialist and had limited subsequent contact with that patient." Id. But, plainly, Singletary presents just such a case. Unlike the doctor in Hathaway , who did not refer the plaintiff to a specialist until after the lawsuit was filed, id. , and consequently remained the plaintiff's primary physician, Dr. Russo referred Singletary to a specialist voluntarily, and he did not continue to provide care after Singletary saw Dr. Ruffo. Dr. Russo was negligent, at worst, given his limited contact with Singletary following the referral.
As for Dr. Geraci, clearly, he was aware of the flare-up of plaintiff's ulcerative colitis when he received and made a notation on Singletary's second medical grievance form. See Geraci Tr. at 86:2-87:12. Nevertheless, that does not mean that Dr. Geraci was reckless. When confronted with plaintiff's second medical grievance form, Dr. Geraci placed Singletary on sick call. Even if, as Dr. Finkel contends, it was professionally irresponsible for Dr. Geraci not to follow up on the referral to sick call, nothing suggests that Dr. Geraci was reckless. In support of his claim, plaintiff cites Grimmett v. Corizon Medical Associates of New York , No. 15-cv-7351 (JPO) (SN), 2017 WL 2274485 (S.D.N.Y. May 24, 2017). In Grimmett , the court found that a plaintiff had sufficiently pled recklessness when he alleged that a doctor had omitted facts from his medical records and utterly refused to respond to numerous medical grievances. Id. at *4. Here, there is no indication that Dr. Geraci deliberately prevented Singletary from receiving care, and by plaintiff's admission, Dr. Geraci did respond to Singletary's second medical grievance by placing him on sick call. Absent any indication that Dr. Geraci was reckless, as opposed to merely negligent, in failing to ensure that Singletary was eventually seen by a doctor, plaintiff's claim cannot, and does not, survive summary judgment.
Furthermore, as with Dr. Russo, there is no indication that Dr. Geraci was aware of the medical transfer form or had a duty to monitor the completion of such a form. The Court, moreover, cannot infer such a duty from Dr. Geraci's title alone. Therefore, and since § 1983 does not otherwise admit of the imposition of supervisory liability, defendants are entitled to summary judgment on this claim as well.
Conclusion
For the foregoing reasons, defendants' motion for summary judgment is granted in its entirety.
The Court certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Memorandum and Order would not be taken in good faith and, therefore, in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States , 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).The Clerk of Court is directed to enter judgment accordingly and to close this case.
So Ordered.