McDermid v. Kellar et al

Filing 61

ORDER granting 46 Defendant Grimes-Boorman's Motion to Dismiss for Failure to State a Claim, and dismissing without prejudice plaintiff's claim against defendant Garza, and dismissing this civil action in it's entirety, by Magistrate Judge Craig B. Shaffer on 03/09/15. (Attachments: # 1 attachment)(nmarb, )

Graham v. Wright, Not Reported in F.Supp.2d (2004)
2004 WL 1794503

2004 WL 1794503
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.

The following facts are not in dispute, except where noted. 2

Frank GRAHAM, Plaintiff,
v.
Lester N. WRIGHT, etc., et al., Defendants.

A. Hepatitis C
Hepatitis C is a liver disease caused by the hepatitis C

No. 01 Civ. 9613(NRB).

|

Aug. 10, 2004.

Attorneys and Law Firms
Frank Graham, Bare Hill Correctional Facility, Malone, New
York, Plaintiff, pro se.
Kevin P. McCaffrey, Assistant Attorney General, State of
New York, New York, New York, for Defendants.

MEMORANDUM AND ORDER
BUCHWALD, J.
*1 Plaintiff Frank Graham (“plaintiff” or “Graham”),
an inmate currently incarcerated at Bare Hill Correctional
Facility in Malone, New York, was diagnosed with
hepatitis C on March 12, 2001. Following that diagnosis,
plaintiff brought suit pro se pursuant to 42 U.S.C. §
1983 against the Department of Correctional Services
(“DOCS”) and various prison administrators and physicians
in their official and individual capacities claiming that the
defendants failed to diagnose and treat his condition in
a timely manner. We affirmed in the main the Report
and Recommendation of Magistrate Judge Pitman on
September 12, 2003, thereby dismissing plaintiff's claims
for various injunctive relief and certain monetary damages
against prison administrators and physicians in their official
capacities for failure to state a claim. 1 SeeGraham v. Wright,
No. 01 Civ. 9613(NRB), 2003 WL 22126764 (S.D.N.Y.
Sept. 12, 2003). Additionally, Magistrate Judge Pitman's
recommendation to deny defendants' motion to dismiss
plaintiff's claim for monetary damages against Drs. Graceffo,
Matthews, Milicevic, Lancellotti, and Makram in their
individual capacities was adopted. Seeid.These five defendant
physicians now move for summary judgment, arguing that the
plaintiff has failed to establish a basis upon which they could
be found to have been deliberately indifferent to the plaintiff's
medical needs.

BACKGROUND

virus. See Lebovics Decl. ¶ 5. 3 Eighty-five percent of people
infected with the hepatitis C virus develop chronic hepatitis
C, which slowly damages the liver and can cause cirrhosis of
the liver, end-stage liver disease, and liver cancer. Seeid.The
virus was first identified in 1988, 4 seeid. at ¶ 28, and the
FDA approved the first test to detect it in 1990. See Graceffo
Decl. ¶ 10. At least six genotypes of the hepatitis C virus have
been identified. Genotype 1 is the most common in the United
States. See Lebovics Decl. ¶ 13.
Treatment of hepatitis C has evolved since the early
nineties as doctors have come to understand better the risk
that hepatitis C can cause serious liver damage and have
developed more successful medications. See Lebovics Decl.
¶ 28. The first hepatitis C treatment, called interferon, was
approved by the federal Food and Drug Administration
in 1992. See Graceffo Decl. ¶ 12; Lebovics Decl. ¶ 15.
Physicians began treating hepatitis C with a combination
of interferon and ribavirin in 1998, and in 2002 the FDA
approved a new form of interferon called pegylated interferon
that remains in a patient's body longer than ordinary
interferon. See Whalen Decl. ¶ 9. Pegylated interferon is now
used in combination with ribavirin to treat hepatitis C. Seeid.
The chance of success with any hepatitis C treatment depends
on the genotype of the virus infecting the patient and the
patient's viral load. In patients with both genotype 1 and a high
viral load, treatment with interferon alone, used between 1992
and 1998, was successful only five percent of the time. See
Lebovics Decl. ¶ 14. The development of pegylated interferon
used in combination with ribavirin has increased the success
rate to roughly 30 percent. Seeid. at ¶ 15.

B. Plaintiff's Illness
*2 When hepatitis Cdamages liver cells, abnormally large
amounts of enzymes, known as SGOT 5 and SGPT, 6 are
released from those cells into the blood stream. See Graceffo
Decl. ¶¶ 21–23. The first record of elevated levels of SGOT
or SGPT in plaintiff's blood appears in a report from February

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2004 WL 1794503

1983. See Pl.'s Objection to Mot. for Summ. J., Ex. A. Blood
tests in September and November 1990 also revealed high
levels of these enzymes. See Pl .'s Objection to Mot. for
Summ. J., Ex. C; Decl. in Supp. of Summ. J., Ex. F, 00279.
In 1990 Graham was under the care of defendants Graceffo
and Matthews. Three subsequent tests performed between
January and August 1991 continued to show that plaintiff's
levels of these enzymes were approximately one and a half to
two times normal levels. See Decl. in Supp. of Summ. J., Ex.
F, 00283, 00286–87. At that time, physicians did not typically
test for hepatitis C or other liver diseases unless enzyme levels
were consistently four times the normal range. See Graceffo
Decl. ¶ 30.

*3 After the test, plaintiff was diagnosed with hepatitis C on
March 12, 2001. He is afflicted with genotype 1 of the virus
and has a high viral load. See Lebovics Decl. ¶ 23. Plaintiff
contends that defendant Makram initially chose not to treat
him because, in her opinion, he was in no present danger from
the disease and the side effects would be too severe. Pl.'s
Compl. ¶ 16. The plaintiff's medical records show, however,
that it was the plaintiff who decided not to pursue treatment
after Makram explained to him the potential risks and benefits
of the medications then available. See Makram Decl. ¶ 13;
Decl. in Supp. of Summ. J., Ex. F, 00479.

In 1991, there was a tuberculosis outbreak at Auburn
Correctional Facility, where plaintiff was incarcerated at
the time. Since plaintiff had tested positive for exposure to
tuberculosis in 1987, Graceffo prescribed isoniazid for him as
a precautionary measure. Plaintiff's medical file indicates he
began receiving isoniazid in August 1991. See Decl. in Supp.
of Summ. J., Ex. F, 00340. Isoniazid was known to cause
liver damage, and if a patient's liver enzyme levels increased
to four to five times normal levels, treatment with isoniazid
was stopped. See Graceffo Decl. ¶¶ 17–20. Three further
blood tests in November and December 1991 and April 1992,
respectively, revealed that plaintiff's liver enzymes were one
and a half to three times as high as normal levels. See Decl. in
Supp. of Summ. J., Ex. F, 00386, 00413–14. Graham stopped
taking isoniazid in November 1992. Seeid. at 00340; Graceffo
Decl. ¶ 27. Plaintiff was never tested for hepatitis C while he
resided at Auburn in the care of Graceffo and Matthews.

Plaintiff's medical records further indicate that on July 30,
2001 he changed his mind and informed Dr. Makram that
he wished to be considered for treatment. See Makram
Decl. ¶ 15; Decl. in Supp. of Summ. J., Ex. F, 00486–
87. Subsequently, Makram ordered additional tests and an
evaluation of plaintiff's medical file to determine if he was
a suitable candidate for medication. See Makram Decl. ¶ 16.
On September 17, 2001, Dr. Makram referred plaintiff to
a specialist in infectious diseases and gastroenterology who
confirmed the hepatitis C diagnosis and recommended a liver
biopsy to determine the extent of damage to plaintiff's liver.
Seeid. at ¶¶ 17–18.A biopsy is necessary before hepatitis C
treatment can begin. Seeid. at ¶ 23.The biopsy was performed
on December 27, 2001, but the plaintiff was transferred out of
Woodbourne Correctional Facility, and out of Dr. Makram's
care, on January 3, 2002, see Decl. in Supp. of Summ. J.,
Ex. C, before Dr. Makram had an opportunity to review the
biopsy. See Makram Decl. ¶¶ 20–24.

Plaintiff was transferred to Eastern Correctional Facility in
October 1993. See Decl. in Supp. of Summ. J., Ex. C. During
his time there, defendant Dr. Milicevic was in charge of his
care. Only one blood test was performed on him in the nearly
five years he spent at Eastern. This test, in February 1998,
showed the plaintiff's SGOT level to be 69, above the normal
range of 0–40. See Decl. in Supp. of Summ. J., Ex. F, p.
00161. He was not tested for hepatitis C while at Eastern.

For reasons only partially explained in the record but
unrelated to the defendants, see Whalen Decl. ¶¶ 7–12, after
the plaintiff's transfer his treatment with pegylated interferon
and ribavirin did not begin until February 26, 2003. Seeid.
at ¶ 13.These medications were administered until August 7,
2003, at which point they were stopped because the plaintiff's
disease was not responding to them and he was complaining
about fatigue. Seeid. at ¶ 17.

In September 1998 plaintiff was transferred to Woodbourne
Correctional Facility, see Decl. in Supp. of Summ. J., Ex.
C, and another blood test was taken in July 2000. This test
showed his levels of both SGOT and SGPT to be nearly twice
as high as normal. See Decl. in Supp. of Summ. J., Ex. F,
p. 00172. Citing the plaintiff's high SGPT level, defendant
Lancellotti ordered a hepatitis C test for plaintiff on December
28, 2000. See Decl. in Supp. of Summ. J., Ex. F, p. 00477.

DISCUSSION
I. Summary Judgment Standard
Summary judgment is properly granted “if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to material fact and that the moving party

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is entitled to judgment as a matter of law.”Federal Rule of
Civil Procedure 56(c). The Federal Rules of Civil Procedure
mandate the entry of summary judgment “against a party who
fails to make a showing sufficient to establish the existence
of an element essential to that party's case, and on which that
party will bear the burden of proof at trial .”Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
In reviewing the record, we must assess the evidence “in
the light most favorable to the non-movant and ... draw
all reasonable inferences in his favor.”Delaware & Hudson
Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d
Cir.1990). Because the plaintiff is pro se, we will construe
his pleadings liberally. We emphasize that where reasonable,
we have drawn inferences and resolved ambiguities in the
manner most favorable to plaintiff. The mere existence,
however, of an alleged factual dispute between the parties will
not defeat a motion for summary judgment. Rather, the nonmoving party must affirmatively set forth facts showing that
there is a genuine issue for trial. Anderson v. Liberty Lobby,
Inc ., 477 U.S. 242, 256 (1986). An issue is “genuine ... if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”Id. at 248 (internal quotation
omitted).

II. Plaintiff's Deliberate Indifference Claims
*4 Plaintiff seeks monetary damages under 42 U.S.C. §
1983 for the defendants' alleged deliberate indifference to
his medical needs in violation of the Eighth Amendment.
To establish an Eighth Amendment violation for deliberate
indifference, plaintiff must satisfy both an objective and a
subjective element. SeeSmith v. Carpenter, 316 F.3d 178,
183 (2d Cir.2002). Objectively, the plaintiff's injury must
be sufficiently serious to implicate the Eighth Amendment.
Seeid. at 184 (holding that “ ‘[b]ecause society does not
expect that prisoners will have unqualified access to health
care,’ a prisoner must first make this threshold showing
of serious illness or injury in order to state an Eighth
Amendment claim for denial of medical care.”) (quoting
Hudson v. McMillan, 503 U.S. 1, 9 (1992)).
The inquiry into whether the objective element of a deliberate
indifference claim is satisfied “must be tailored to the
specific circumstances of each case.”Id. at 185.In considering
this element, courts focus on the risk of harm to the
prisoner resulting from a lack of medical care. Id. at
186.SeealsoEstelle, 429 U.S. at 106 (stating that “[i]n order
to state a cognizable claim, a prisoner must allege acts
or omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs.”) (emphasis added).
Where an inmate alleges that prison officials refused to
address his medical condition, the objective element is
satisfied if the underlying condition is sufficiently serious.
Seeid. at 185–186.
Where, however, an inmate only alleges that prison officials
delayed in adequately treating his serious medical condition,
“it is appropriate to focus on the challenged delay or
interruption in treatment rather than the prisoner's underlying
medical condition alone in analyzing whether the alleged
deprivation is, in ‘objective terms, sufficiently serious' to
support an Eighth Amendment claim.”Smith, 316 F.3d at
186 (quoting Chance, 143 F.3d at 702). A defendant's delay
in treating an ordinarily insignificant medical condition can
become a constitutional violation if the condition worsens and
creates a “substantial risk of injury.” Id. Conversely, delay
in treating a life-threatening condition may not violate the
Eighth Amendment if the lapse does not cause any further
harm beyond that which would occur even with complete
medical attention. See id.
The subjective requirement is met if the plaintiff demonstrates
that the defendant had a sufficiently culpable state of mind
to establish Eighth Amendment liability. A showing of
negligence by the defendants is not enough for a deliberate
indifference claim. SeeEstelle v. Gamble, 429 U.S. 97,
106 (1976) (stating that “[m]edical malpractice does not
become a constitutional violation merely because the victim
is a prisoner”). A deliberately indifferent official “knows
of and disregards an excessive risk to inmate health or
safety.”Farmer v. Brennan, 511 U.S. 825, 837 (1994).

A. The Objective Element of Plaintiff's Claims
*5 Defendants contend that their delay in testing plaintiff
for hepatitis C did not harm him because his body's failure
to respond to treatment in 2003 indicates that he would not
have benefitted from earlier treatment, either. 7 Only thirty
percent of patients, like Graham, who are afflicted with
genotype 1 of the virus and high viral load respond to the
most updated treatment protocol of pegylated interferon and
ribavirin. Graham, unfortunately, was not within the thirty
percent. For hepatitis C patients treated with interferon alone,
there was only a five percent response rate. Defendants reason
that a patient who did not respond to the treatment with
a thirty percent success rate would have had virtually no
chance of responding to the medication with a five percent
rate of success. Accordingly, they argue, plaintiff cannot

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show that he was harmed by any delay in treatment. See
Lebovics Decl. ¶¶ 25, 30 (declaring “with a high degree of
medical confidence that the fact that plaintiff did not respond
to therapy in 2003 demonstrates that he would not have
responded to interferon therapy in 1992 nor interferon and
ribavirin therapy in 1998.”).
While there could be exceptions to Dr. Lebovics' conclusion,
any failure by the defendants to diagnose Graham's disease
earlier and thus begin his treatment sooner deprived him of
no more than a five percent chance of response. Because
there was no more than a five percent chance that plaintiff or
any other patient would have responded to interferon alone,
he cannot establish by a preponderance of the evidence that
he would have benefitted from interferon treatment if it was
provided at an earlier date. Thus, no rational jury could find
that it is more likely than not that an event with a five percent
chance of occurring would have happened in this instance.
Consequently, the plaintiff cannot establish that he suffered
the objective harm needed for a deliberate indifference claim.
Having concluded that Graham cannot show that he suffered
the objective harm necessary for an Eighth Amendment
claim, we need not reach the defendants' claims that
plaintiff cannot satisfy the subjective element, either. In the
alternative, however, this Court finds that the plaintiff has not
produced sufficient evidence of the defendants' culpability
from which a reasonable jury could find them guilty of
deliberate indifference.

B. The Subjective Element of Plaintiff's Claims: Drs.
Graceffo and Matthews
Graham claims that Graceffo's and Matthews' decisions not to
order a hepatitis C test between 1990 and 1992, when blood
tests consistently showed he had elevated levels of two liver
enzymes, SGOT and SGPT, demonstrate their indifference
to his health. Dr. Graceffo does not deny that blood tests
indicated that plaintiff's liver enzymes were above the normal
range during this time period, but he avers that Graham's
enzyme levels did not rise to the point at which patients
were typically tested for hepatitis C. See Graceffo Decl. ¶ 30.
Plaintiff's SGOT and SGPT levels were never greater than
three times normal, Id. at ¶ 31; Decl. in Supp. of Summ. J.,
Ex. F, 00286–87, 00386, 00413–14, and Graceffo's statement
that the standard of care was to test for hepatitis C only if
a patient's enzyme levels rose to four times normal levels is
undisputed. Accordingly, as the plaintiff cannot show that
Graceffo's and Matthews' decisions deviated from prevailing

medical standards, there would be no basis for a jury to find
that their failures to order a hepatitis C test support a claim of
deliberate indifference.

C. The Subjective Element of Plaintiff's Claims: Dr.
Milicevic
*6 Following plaintiff's transfer to Eastern Correctional
Facility in 1993, his health was monitored by Dr. Milicevic.
One blood test was conducted on the plaintiff during his stay
at Eastern, from October 1993 through September 1998. This
test, in February 1998, showed the plaintiff's SGOT level to
be 69, above the normal range of 0–40. See Decl. in Supp. of
Summ. J., Ex. F, p. 00161.
Plaintiff asserts that Dr. Milicevic's failure to test his blood
more than once in nearly five years despite his prior history
of elevated liver enzyme levels and her failure to order a
hepatitis C test after his February 1998 blood test show that
she was deliberately indifferent to his health. Plaintiff's blood
tests, however, never showed that his enzyme levels rose to
four times the normal range. Accordingly, we do not find
that Milicevic knew of and disregarded an excessive risk to
the plaintiff by failing to order a hepatitis C test. Even if we
were to assume, arguendo, that Dr. Milicevic should have
tested plaintiff's blood more frequently or ordered a hepatitis
C test, we would find, for the reasons explained above, that
plaintiff did not suffer any injury that could support an Eighth
Amendment claim.

D. The Subjective Element of Plaintiff's Claims: Dr.
Lancellotti
The fourth defendant, Dr. Lancellotti, ultimately ordered a
hepatitis C test for Graham in December 2000 after reviewing
plaintiff's medical records. Lancellotti Decl. ¶ 9. Plaintiff
contends that Lancellotti could not have known to order a
hepatitis C test unless he had been previously aware that
plaintiff had hepatitis C. However, Dr. Lancellotti's notes
from December 28, 2000 indicate that he ordered the test
based on the plaintiff's high SGPT reading. See Decl. in Supp.
of Summ. J., Ex. F, 00477. That July, a blood test had shown
Graham's levels of both SGPT and SGOT to be above normal.
See Decl. in Supp. of Summ. J., Ex. F, 00172. Plaintiff's
allegation against Lancellotti lacks factual support, and if
credited would essentially punish Dr. Lancellotti for ordering
a hepatitis C test.
Graham also asserts that Dr. Lancellotti should have ordered
a hepatitis C test immediately upon reviewing his medical file

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Graham v. Wright, Not Reported in F.Supp.2d (2004)
2004 WL 1794503

Plaintiff offers no other evidence that Dr. Makram ought
to have diagnosed his hepatitis C earlier and his claim that
she refused to treat him is refuted by his medical records.
See Decl. in Supp. of Summ. J., Ex. F, p. 00479. It will
also be recalled that Dr. Makram referred plaintiff to a
specialist who recommended a biopsy (which was done) prior
to treatment. Accordingly, there is no basis for finding that
Dr. Makram acted with indifference to the plaintiff's serious

after Graham arrived at Woodbourne. Because the plaintiff's
blood test did not show his enzyme levels reached the level
at which the existing standard of care would have signaled
defendants to order a hepatitis C test, it cannot be inferred
that Dr. Lancellotti was deliberately indifferent to the plaintiff
solely because he did not order a test after reviewing plaintiff's
medical records.

medical needs. 8
E. The Subjective Element of Plaintiff's Claims: Dr.
Makram
Plaintiff also asserts that Dr. Makram delayed in properly
diagnosing and treating his hepatitis C. See Pl.'s Compl. ¶
16. He claims that Dr. Makram ought to have realized he
should be tested for hepatitis C upon reviewing his medical
file containing records of his earlier blood tests following
his transfer to Woodbourne. As explained above, however,
the results of Graham's earlier blood tests never showed his
enzyme levels had reached four times the normal range.

CONCLUSION
*7 For the foregoing reasons, defendants' motion for
summary judgment is granted.
IT IS SO ORDERED.

Footnotes

1
2

3

4
5
6
7

8

We only departed from Magistrate Judge Pitman's recommendations in that we also dismissed plaintiff's claims for monetary damages
against defendants Wright and Keane.
The following factual background is derived from: Plaintiff's Objections to Motion for Summary Judgment (“Pl.'s Objection to Mot.
for Summ. J.”); Declaration of Anthony Graceffo, M.D. (“Graceffo Decl.”); Declaration of Mervat Makram, M.D. (“Makram Decl.”);
Frank Graham's inmate transfer history, provided as exhibit C to the Declaration in Support of Defendants' Motion for Summary
Judgment (“Decl. in Supp. of Summ. J., Ex. C”); Declaration of Frank Lancellotti, M.D. (“Lancellotti Decl.”); Declaration of Tim
Whalen, M.D. (“Whalen Decl.”); the medical records of Frank Graham, provided as exhibit F to the Declaration in Support of
Defendants' Motion for Summary Judgment (“Decl. in Supp. of Summ. J ., Ex. F”); and the Declaration of Edward Lebovics, M.D.
(“Lebovics Decl.”).
Unlike the other physicians whose declarations are cited, Dr. Lebovics is not a defendant in this suit or a DOCS employee. He is
the director of the Division of Gastroenterology and Hepatobiliary Diseases at New York Medical College and is presented by the
defendants as an expert on liver disease. “Hepatobiliary” is defined by http:// dictionary.reference.com as “of, relating to, situated in
or near, produced in, or affecting the liver and bile, bile ducts, and gallbladder.”Dr. Lebovics has received numerous grants to study
hepatitis C treatments and has also published on various liver diseases including hepatitis C.
Plaintiff claims hepatitis C was identified in 1985. Whether the correct date is 1985 or 1988 does not change our analysis.
Serum glutamic-oxaloacetic transaminase. See Graceffo Decl. ¶ 19.
Serum glutamic pyruvic transaminase. See Graceffo Decl. ¶ 19.
Decisions in this Court have consistently held that hepatitis C is a sufficiently serious medical condition for purposes of a deliberate
indifference claim. SeePabon v. Wright, No. 99 Civ. 2196(WHP), 2004 WL 628784, at *5 (S.D.N.Y. March 29, 2004) (“It is wellestablished that Hepatitis C qualifies as a serious medical condition for purposes of an Eighth Amendment analysis.”); Johnson v.
Wright, 234 F.Supp.2d 352, 360 (S.D.N.Y.2002). Nevertheless, because the plaintiff suffered from a delay in treatment, rather than a
complete lack of treatment, the objective element must be satisfied by harm that resulted from the delay. SeeSmith, 316 F.3d at 186.
Because there is insufficient factual basis for plaintiff's claim that defendants acted with deliberate indifference to his medical needs,
we do not need to reach Dr. Lancellotti's claim that he was not personally involved in plaintiff's medical treatment or the defendants'
claims that they are entitled to qualified immunity.

End of Document

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