Green v. Shaw et al

Filing 30

RULING (see attached) granting Defendants' 24 Motion for Summary Judgment. The Clerk is directed to enter judgment in favor of the Defendants and close this case. Signed by Judge Charles S. Haight, Jr. on 3/29/2019. (Ghosh, R.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

COURTNEY GREEN,
Plaintiff,

3:17-cv-00913 (CSH)

v.
R.N. SHAW, R.N. AUGUSTE,
MARCH 29, 2019
Defendants.

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Haight, Senior District Judge:
Plaintiff Courtney Green ("Plaintiff"), currently incarcerated at Osborn Correctional
Institution and previously incarcerated at Corrigan Correctional Center (“Corrigan”), filed this
Complaint pro se pursuant to 42 U.S.C. § 1983 on June 2, 2017. On August 17, 2017, this Court
issued an Initial Review Order, permitting Plaintiff's claims that he was denied adequate medical
care in violation of the Eighth Amendment to proceed against two Registered Nurses at Corrigan,
Nurses Shaw and Brennan 1 (the "Defendants"), in their individual capacities. That Order, 2017
WL 3568666 (D. Conn. Aug. 17, 2017), familiarity with which is assumed, also dismissed
Plaintiff’s Amended Complaint to the extent it sought to plead § 1983 claims for violations of his
due process rights or based on the Equal Protection Clause. Id.
I.

Standard of Review
A motion for summary judgment may be granted only where there is no genuine dispute

1

In 2015, Nurse Brennan’s last name was Augusto. Doc. 24-2 at 1 n.1. She was incorrectly
named in the Complaint as Nurse Auguste. The Court will use the Defendant’s current name in this
ruling.

as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a); see also Redd v. New York Div. of Parole, 678 F.3d 166, 173-74 (2d Cir. 2012). A
“genuine issue” exists “if the evidence is such that a reasonable jury could return a verdict for the
non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
“material” if it “might affect the outcome of the suit under governing law.” Id.
The moving party bears the initial burden of demonstrating the absence of a disputed issue
of material fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986). If the initial burden is satisfied, the
burden then shifts to the non-moving party to present “specific evidence demonstrating the
existence of a genuine dispute of material fact.” Robinson v. Concentra Health Servs., 781 F.3d
42, 34 (2d Cir. 2015) (internal quotation marks and citation omitted). While the Court must view
the record in the light most favorable to the nonmoving party, and resolve all ambiguities and draw
all reasonable inferences in favor of the party against whom summary judgment is sought,
Anderson, 477 U.S. at 255, the non-moving party nevertheless “must do more than simply show
that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

Instead, the non-movant must support any

assertion disputing the veracity of a fact or existence of an alleged dispute with specific citation to
the record materials. Fed. R. Civ. P. 56(c)(1).
Because Plaintiff is proceeding pro se, the Court must read his submissions “liberally” and
interpret them “to raise the strongest arguments” that they suggest. Chavis v. Chappius, 618 F.3d
162, 170 (2d Cir. 2010). Nonetheless, “[p]roceeding pro se does not otherwise relieve a litigant
of the usual requirements of summary judgment, and a pro se party's bald assertions unsupported
by evidence, are insufficient to overcome a motion for summary judgment.” Rodriguez v. Hahn,

2

209 F. Supp. 2d 344, 348 (S.D.N.Y. 2002) (internal quotation marks omitted).
II.

Facts 2
On or about June 23, 2015, Green began experiencing pain and bleeding from his rectum

after a bowel movement, which occurred after he had been playing basketball and while he was
fasting for Ramadan. Plaintiff’s Local Rule 56(a)(2) Statement, Doc. 29, at 18 ¶ 5. The next day,
he wrote to the medical unit of Corrigan stating that he was "having pain in [his] rectum during
bowel movement." Id. ¶ 6. His request was returned on or about June 26, 2015 with a notation
that he had been placed on the sick call list. Id. About a week later on July 1, 2015, he wrote the
medical unit after experiencing severe discomfort and because he still had not been seen by a
medical professional. Id. ¶ 7. He stated: "I have a serious problem. Pain and bleeding from the
rectum and I need to see the Dr. urgently." Id. He also reminded medical staff that he had sent a
previous written request regarding his symptoms. Id.
On July 3, 2015, Green was seen by Defendant Shaw at sick call. Id. ¶ 8. He explained
his symptoms and informed Shaw that he was fasting for Ramadan. Id. Shaw questioned the
Plaintiff about his bowel movements, and Plaintiff indicated that earlier in the day he had a hard
bowel movement. Defendants’ Local Rule 56(a)(1) Statement, Doc. 24-3 ¶ 22. Plaintiff did not
disclose black tarry stools, which would have indicated blood in the stool. Id. ¶ 25. Shaw also
auscultated to determine if Plaintiff’s bowels were stagnant and for regular peristalsis, felt the
plaintiff’s abdominal area for distention caused by stool buildup, and took Plaintiff’s vital signs.
Doc. 29 at 18-19; Doc. 24-3 ¶ 23. Shaw did not, however, conduct a rectal examination. Doc. 29

2

The facts are taken from the parties’ Local Rule 56(a) Statements and attached exhibits. These
facts are not disputed for purposes of this motion or are taken in the light most favorable to Plaintiff. See
Mitchell v. City of New York, 841 F.3d 72, 75 (2d Cir. 2016) (at summary judgment, a court “views the
evidentiary record in the light most favorable to ... the non-moving party”).

3

at 18-19. Shaw diagnosed Plaintiff with hemorrhoids due to constipation, and recommended that
Plaintiff increase his intake of water, consume more fiber, and not strain while using the restroom.
Doc. 24-3 ¶¶ 16, 31, 33, 34. Green was also instructed to follow up in three to four days if the
problem persisted. Id. ¶ 16. Green did not return within three to four days, and Shaw did not see
Green again.
On August 20, 2015, Green again wrote to the Corrigan medical unit stating "I'm having
hemorrhoid trouble problems." Doc. 29 at 38, Pl.’s Ex. 5. Soon after he was called to medical for
triage where Defendant Brennan met with him at sick call. 3 Doc. 24-3 ¶ 2. During this
consultation, Green informed Brennan that he had been using hemorrhoid cream but it was not
effective and his rectum was still bleeding. Id. ¶ 7. Brennan explained that hemorrhoids are
chronic. Id. Brennan instructed Green to push the hemorrhoids back into his rectum with his
fingers while in the shower. Id. Green requested that Brennan put him on a list to see the doctor
so that they could begin a process to remove the hemorrhoids. Id. Brennan told Green that there
was no removal of hemorrhoids and Green stated "Oh ok. I'm all set." Doc. 24-3 ¶ 47. Brennan
did not place Green on the wait list to see a doctor and did not examine Green's rectum. Id. ¶¶ 50.
Plaintiff does not allege that he interacted with either Defendant after August of 2015.
On or about March 31, 2016, Green was transferred from Corrigan to Macdougall Walker
Correctional Institution. Doc. 29 at 20 ¶ 27. While housed there, his symptoms worsened and

3

Green denied this statement. The record of Green’s meeting with Defendant Brennan is
undated. Doc. 25, Pl.’s Ex. A at 41-42. There is no notation in the medical records providing the date of
this visit. However, Green submitted a sick call request on August 20, 2015, and was informed the
following day that he was on the sick call list. See Doc. 29 at 38, Pl.’s Ex. 5. Green alleges that he was
seen by Defendant Brennan a few days after his sick call request, and Defendant Brennan states in her
affidavit that she saw Green in late August 2015. Doc. 24-5, Ex. C, Brennan Aff. ¶ 7. Absent any
contrary evidence, the Court concludes that Defendant Brennan saw Green in late August 2015.

4

eventually impeded his ability to have regular bowel movements, to the point that his underwear
would be soiled with blood. Id. At that point, he also experienced burning sensations from his
rectum and he was in extreme discomfort while walking, running and during bowel movements.
Id. In mid- to late-August 2016, Green wrote to the medical unit via an inmate request form
regarding his symptoms. Id. at 21 ¶ 28. He was not seen and two weeks later, on September 12,
2016, he wrote again elaborating on the difficulties he was experiencing and explaining that he
had not been seen for sick call treatment as required under Administrative Directives 8.1(6)A and
8.1(3)A. See id. at 40, Pl.’s Ex. 6. On or about October 4, 2016, Green received a notification that
he was scheduled to see a doctor five days later. Id. ¶ 29. Green was not seen by a doctor while at
MacDougall Walker, but was subsequently transferred to Osborn on October 21, 2016. Id. ¶ 30.
Two days after his transfer, Green wrote to medical via an inmate request form, stating that his
hemorrhoids were “causing a great deal of burning, bleeding and restrict[ion] of my bowel
movements” and requesting to have his veins removed. Id. ¶ 31; id. at 42, Pl.’s Ex. 7. On October
31, 2016, his inmate request was returned stating that he had been a no show at sick call. Id. ¶ 32;
id. at 42, Pl.’s Ex. 7. On November 7, 2016, he filed an Inmate Administrative Remedy Form
requesting a Health Services Review, and stating that he had not attended sick call because he had
previously met with two nurses at Corrigan who had told them there was nothing that could be
done about his condition. Id. at 45-46, Pl.’s Ex. 8. On December 1, 2016, Green was called to
medical where Dr. Wright saw him. Id. ¶ 33. During his consultation, Green explained in detail
the symptoms that he had been experienced over about 18 months. Id. at 21-22 ¶ 33. Dr. Wright
then examined Green's rectum and did not find any hemorrhoids but did observe blood. Id. at 22
¶ 34. Dr. Wright prescribed to Green a stool softener, suppositories and cortisone cream. Id. Dr.

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Wright also submitted Green to a review committee to be determined if he should be tested for
colon cancer. Id. ¶ 36.
On or about December 9, 2016, Green's Inmate Administrative Remedy Form requesting
his Health Services Review was returned with the disposition "Change DX/TX.” Doc. 29 at 4546, Pl.’s Ex. 8. Between December 1, 2016 and February 6, 2017, Green was approved by the
review committee to have testing done with Dr. Giles at the UCONN Health Center on February
7, 2017. Id. at 22 ¶ 36. During the consultation it was determined that Green did not have colon
cancer, but that he, in addition to suffering from moderate size hemorrhoids, had an anal fissure
which had healed with gradation tissue, and would not properly heal and would continue bleeding
without a resection procedure. Id. ¶ 37. On or about March 15, 2017, Green was transferred to
UCONN Health Center for the resection procedure. Id. ¶ 38. He also had the wall of an internal
hemorrhoid band ligated.

Id.

Sometime in the middle of May 2017, Green again began

experiencing sharp pain from his rectum in addition to bleeding. Id. ¶ 39. Green met with a series
of medical providers since May 2017, but as of July 2018 he continues to suffer from pain and
bleeding from his rectum. Id. at 26 ¶ 60.
III.

Discussion
The defendants move for summary judgment on three grounds: (1) Green did not exhaust

his administrative remedies before filing this action, (2) the Defendants were not deliberately
indifferent to a serious medical need, and (3) the Defendants are protected by qualified immunity.
A.

Exhaustion of Administrative Remedies

Defendants first argue that Green has not exhausted his administrative remedies. The
Prison Litigation Reform Act requires prisoners to exhaust administrative remedies before filing a

6

federal lawsuit relating to prison conditions. 42 U.S.C. § 1997e(a) (“No action shall be brought
with respect to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.”). This exhaustion requirement applies to all claims
regarding “prison life, whether they involve general circumstances or particular episodes.” Porter
v. Nussle, 534 U.S. 516, 524, 532 (2002).
Exhaustion of all available administrative remedies must occur regardless of whether the
administrative procedures provide the relief that the inmate seeks. See Booth v. Churner, 532 U.S.
731, 741 (2001). Furthermore, prisoners must comply with all procedural rules regarding the
grievance process prior to commencing an action in federal court. See Woodford v. Ngo, 548 U.S.
81, 90-91, 93 (2006) (proper exhaustion “means using all steps that the agency holds out ... (so
that the agency addresses the issues on the merits) ... [and] demands compliance with agency
deadlines and other critical procedural rules”). Special circumstances will not relieve an inmate
of his obligation to adhere to the exhaustion requirement.

An inmate’s failure to exhaust

administrative remedies is only excusable if the remedies are in fact unavailable. See Ross v.
Blake, 136 S. Ct. 1850, 1858 (2016).
1.

Administrative Review Procedure 4

The Health Services Review procedure is the administrative remedy for all medical issues.
Department of Correction Administrative Directive 8.9(1), https://portal.ct.gov/DOC/AD/ADChapter-8 (last visited Dec. 11, 2018). An inmate, like Green, seeking review of a diagnosis- or

4

The following facts are also undisputed unless otherwise noted, and are taken from the
parties’ Local Rule 56(a) Statements and attached exhibits.
7

treatment-related issue (including the decision to provide no treatment) is directed to seek an
informal resolution prior to filing a formal request for a Health Services Review. Id. at 8.9(10).
If the issue is not satisfactorily resolved informally, the inmate is then directed to file an Inmate
Administrative Remedy Form seeking a Health Services Review. Id. at 8.9(11). The Inmate
Administrative Remedy Form must designate that the inmate is experiencing an issue related to
“Diagnosis/Treatment” by checking the appropriate box, and provide a concise statement of what
diagnostic or treatment decision he believes is wrong and how he has been affected. Id. The
Health Services Review Coordinator will then schedule a Health Services Review Appointment
with a doctor as soon as possible and at no cost to the inmate. Id. The doctor must denote the visit
in the inmate’s medical record as a Health Services Review Administrative Remedy Appointment.
Id. at 8.9(11)(C).
If the doctor concludes that existing diagnosis or treatment was appropriate, the inmate is
considered to have exhausted his administrative remedies. Id. at 8.9(11)(A). If the doctor decides
that a different treatment or diagnosis is warranted, he may either act on his decision or refer the
matter to the Utilization Review Committee for authorization. Id. at 8.9(11)(B). The doctor will
notify the inmate of this decision in writing within ten business days. Id. at 8.9(11)(A).
2.

Green’s Administrative Exhaustion

After attending sick call twice at Corrigan and submitting multiple medical grievances and
Inmate Request Form, Green filled out an Inmate Administrative Remedy Form on November 7,
2016. See Doc. 29 at 45-46, Pl.’s Ex. 8. In his Inmate Administrative Remedy Form, he requested
“a Dr. appointment” to “discuss the removal of these hemorrhoids.” Id. He also stated that he did
not want to see a nurse at sick call at Osborn Correctional Institution because he had already seen

8

two nurses at sick call at Corrigan and was incorrectly told nothing could be done. Id. The form
was received on November 21, 2016. Id.
According to DOC procedure, Green was then entitled to a Health Services Review
Appointment, which should have been denoted as such in Green’s health record. See Doc. 24-3,
Pl.’s Ex. D at 2. There is no entry in Green’s medical records for a Health Services Review
Appointment. However, medical records indicate that a Dr. Wright examined Green on December
5, 2016, and wrote treatment notes in response to Green’s Inmate Administrative Request Form
the same day. The same day, Dr. Wright also recorded treatment notes in response to Green’s
Inmate Administrative Request Form. See Pl.’s Ex. 8, Doc. 29 at 45. A disposition of “Change
DX/TX” was issued in response to Green’s Inmate Administrative Remedy Form on December 9,
2016, which included Dr. Wright’s treatment notes. Id. When the response was returned, a box
indicating that Green had “exhausted DOC's administrative remedies” had also been checked. Id.
These facts indicate that Green followed the exact procedure required by DOC
Administrative Directive 8.9: he sought informal resolution of his grievance by submitting an
Inmate Request Form, filled out an Inmate Administrative Remedy Form when his concerns were
not resolved to his satisfaction, and met with a doctor for a Health Services Review Appointment.
The official response to his Inmate Administrative Remedy Form also specifically represented that
he had “exhausted DOC’s Administrative Remedies.” See Braham v. Perelmuter, No. 3:15-CV1094 (JCH), 2017 WL 3222532, at *10 (D. Conn. July 28, 2017) (“[B]ased on the fact that the
Health Services Review Coordinator checked off the box indicating that [plaintiff] had exhausted
his available remedies, there is an issue of fact as to whether [plaintiff] was justified in believing
that he had taken all the necessary steps to exhaust his remedies as to his claim against Health

9

Administrator Brown.”). Although the form did not identify Defendants Shaw and Brennan by
name, Green’s specific reference to attending “sick call twice already in Corrigan” where nurses
told him there was “nothing that can be done for [his] medical condition” clearly implicates their
inaction as the underlying reason for his grievance—Defendants were the only medical staff who
treated Green for hemorrhoids at Corrigan.
Defendants’ suggestion that Plaintiff’s meeting with Dr. Wright was not a “Health Services
Review Appointment” because it was not recorded as such in Plaintiff’s medical records is also
unavailing. The facts before the Court evince a far greater likelihood that a Health Services
Review Appointment was not recorded due to administrative error than non-occurrence. 5
Accordingly, the motion for summary judgment is denied on this ground that Green failed to
exhaust his administrative remedies.
B.

Deliberate Indifference to a Serious Medical Need

Defendants next argue that they were not deliberately indifferent to a serious medical need.
While the Eighth Amendment imposes a duty upon prison officials to ensure that inmates receive
adequate medical care, Farmer v. Brennan, 511 U.S. 825, 832 (1994), “not every lapse in medical
care is a constitutional wrong. Rather, a prison official violates the Eighth Amendment only when
two requirements–one objective and one subjective–are met.” Salahuddin v. Goord, 467 F.3d 263,
279 (2d Cir. 2006) (quoting Farmer, 511 U.S. at 834).

5

The facts before the Court strongly suggest that Green’s appointment with Dr. Wright was a
Health Services Review Appointment in direct response to the Inmate Administrative Remedy
Form he submitted. Specifically, Green’s medical records indicate that he was seen by Dr.
Wright on December 5, 2016. On the same date, Dr. Wright signed and wrote treatment notes on
the official response to Green’s Inmate Administrative Remedy Form. The appointment also
took place between receipt of the Inmate Administrative Remedy Form and disposition, and
addressed the same underlying medical issue as Green’s Inmate Administrative Remedy Form.
10

Objectively, “the alleged deprivation of adequate medical care must be sufficiently
serious.” Id. (internal quotation marks omitted). A condition is considered serious if “a reasonable
doctor or patient would find [it] important and worthy of comment,” the condition “significantly
affects an individual’s daily activities,” or if it causes “chronic and substantial pain.” Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotation marks omitted).
Subjectively, the defendant must have had actual awareness of a substantial risk that the
inmate would suffer serious harm as a result of her conduct. See Salahuddin, 467 F.3d at 279-80.
Put differently, the prisoner must show that the defendant knew of and disregarded “‘an excessive
risk to inmate health or safety; the official must [have] both be[en] aware of facts from which the
inference could be drawn that a substantial risk of serious harm exist[ed], and ... must also [have]
draw[n] the inference.’” Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005) (quoting Farmer,
511 U.S. at 837); see also Phelps v. Kapnolas, 308 F.3d 180, 186 (2d Cir. 2002) (per curiam)
(equating “deliberate indifference” with criminal “recklessness”). Merely negligent conduct does
not constitute deliberate indifference, Salahuddin, 467 F.3d at 280, nor does a disagreement over
proper treatment or diagnosis create a constitutional claim so long as the treatment was adequate.
Estelle v. Gamble, 429 U.S. 97, 107 (1976); Chance, 143 F.3d at 703; see also Hathaway v.
Coughlin, 37 F.3d 63, 70 (2d Cir. 1994) (“We do not sit as a medical board of review. Where the
dispute concerns not the absence of help but the choice of a certain course of treatment, or
evidences mere disagreement with considered medical judgment, we will not second guess the
doctors.”).
1. Serious Medical Need
To satisfy the objective element, Green must present evidence that his medical need was

11

serious at the time he was treated by the Defendants. See El-Hanafi v. United States, No. 1:13-cv2072-GHW, 2015 WL 72804, at *15 (S.D.N.Y. Jan. 6, 2015) (dismissing deliberate indifference
claim against doctor because plaintiff failed to allege facts showing that condition “was objectively
sufficiently serious at the time he saw” the doctor). “There is no settled, precise metric to guide a
court in its estimation of the seriousness of a prisoner's medical condition.” Brock v. Wright, 315
F.3d 158, 162 (2d Cir. 2003). However, the Second Circuit has set forth considerations that should
guide the analysis. These considerations include (1) whether a reasonable doctor or patient would
perceive the medical need in question as “important or worthy of comment or treatment,” (2)
whether the medical condition significantly affects daily activities, and (3) “the existence of
chronic and substantial pain.” Chance v. Armstrong, 143 F.3d 698, 702-703 (2d Cir. 1998). In
evaluating the seriousness of the condition, the Court considers the plaintiff’s medical condition
at the time he interacted with the defendants. See El-Hanafi v. United States, No. 1:13-cv-2072GHW, 2015 WL 72804, at *15 (S.D.N.Y. Jan. 6, 2015) (dismissing deliberate indifference claim
against doctor because plaintiff failed to allege facts showing that condition “was objectively
sufficiently serious at the time he saw” the doctor).
While Green has presented medical evidence showing that he underwent surgery in 2017
to address an anal fissure, he presents no evidence showing that this condition was present in the
summer of 2015. To the contrary, Green specifically states that his condition worsened after his
transfer to MacDougall-Walker Correctional Institution in March 2016. These allegations show
that Green’s condition developed into a serious medical need, but do not suffice to show—even
taking all inferences in the light most favorable to Green—that the need existed at the time he met
with Defendants at Corrigan. See Melvin v. County of Westchester, Case No. 14-CV-2295(KMK),

12

2016 WL 1254394, at *7 (S.D.N.Y. Mar. 29, 2016) (“[T]he benefit of hindsight cannot support a
claim of deliberate indifference to a serious medical need that was unknown at the time of
treatment.”); Figueroa v. Semple, No. 3:12-cv-982(VAB), 2015 WL 3444319, at *5 (D. Conn.
May 28, 2015) (“Although the injuries suffered by the plaintiff provide the [c]ourt with the benefit
of hindsight, they do not show that, at the time of the incident in question, the defendants
disregarded an excessive risk to the plaintiff's safety.” (emphasis added)).
At the time he met with Defendants, Plaintiff’s medical records establish that he
complained of rectal pain and bleeding during bowel movements, which were diagnosed as
symptomatic of hemorrhoids. Without minimizing the discomfort that Green experienced, I, join
with the majority of courts in this Circuit in declining to find that hemorrhoids, rectal bleeding, or
painful bowel movements constitute a “serious medical need” for Eighth Amendment purposes.
Adams v. Rock, No. 9:12-CV-1400 GLS/ATB, 2015 WL 1312738, at *8 (N.D.N.Y. Mar. 24, 2015)
(constipation and minor bleeding that later evolved into an anal fissure did “not constitute ‘serious’
medical conditions necessary to establish the objective component of an Eighth Amendment
medical care claim.”); Black v. Fischer, No. 9:08-CV-0232, 2010 WL 2985081, at *10 (N.D.N.Y.
July 1, 2010) (constipation and an external hemorrhoid for a period of less than one month, during
which plaintiff experienced typical symptoms, including discomfort and minor bleeding are not
sufficiently serious to establish an Eighth Amendment claim); Kendall v. Kittles, No. C0 Civ. 628
(GEL), 2004 WL 1752818, at *6 (S.D.N.Y. Aug. 4, 2004) (“Hemorrhoids, albeit, uncomfortable,
are a minor issue, far removed from the category of medical conditions that have been deemed
‘sufficiently serious' by other courts.”); Lowman v. Perlman, No. 9:06–CV–0422, 2008 WL
4104554, at *5 (N.D.N.Y. Aug. 29, 2008) (plaintiff’s hemorrhoid condition was not sufficiently

13

serious to give rise to an Eighth amendment claim); Cabassa v. Gummerson, No. 01–CV–1039,
2006 WL 1559215, at *9-10 (N.D.N.Y. Mar. 30, 2006), report and recommendation adopted, 2006
WL 1555656 (N.D.N.Y. Jun. 1, 2006) (same); Youngblood v. Glasser, No. 9:10-CV-1430
NAM/DEP, 2012 WL 4051846, at *8 (N.D.N.Y. Aug. 22, 2012), report and recommendation
adopted, No. 9:10-CV-1430, 2012 WL 4051890 (N.D.N.Y. Sept. 13, 2012) (collecting cases); but
see Muhammad v. New York Dep't of Corrs., No. 10 Civ. 1707, 2011 WL 797506 (S.D.N.Y. Feb.
3, 2011) (where plaintiff alleged that his hemorrhoids caused him to experience “unbearable and
excruciating pain, left him chronically weakened, and has interfered with daily activities by
making it practically impossible for him to use the bathroom”, plaintiff “sufficiently pled that his
medical condition constituted a serious medical need” although “at some later stage in the
litigation” it may become clear that the claims are not adequately supported), report and
recommendation adopted, 2011 WL 797672 (S.D.N.Y. Mar. 3, 2011). While Plaintiff reported
experiencing some pain, the record does not indicate that it was “chronic and substantial” or
significantly affected Plaintiffs’ daily activities —quite the opposite, Plaintiff did not complain of
his symptoms again until more than a year after his appointment with Defendant Brennan.
Youngblood 2012 WL 4051846, at *8 (dismissing Eighth Amendment claim against prison
physician on summary judgment where plaintiff did not claim to be in substantial pain from
hemorrhoids and had not complained about the condition again after meeting with the physician);
cf. Ferguson v. Cai, No. 11-cv-6181, 2012 WL 2865474, at *3 (S.D.N.Y. July 12, 2012) (“A
serious medical need is generally characterized by ‘a condition of urgency, one that may produce
death, degeneration, or extreme pain.’” (quoting Johnson, 412 F.3d at 403).
The Court concludes that Green has not established that he had a serious medical need

14

when he was seen by Defendants Shaw and Brennan. To state the proposition in the Rule 56
context, this record does not present a genuine issue on that particular material fact.
2. Deliberate Indifference
Even if he could show that he had a serious medical need in July and August 2015, Green
presents no evidence that either Defendant possessed a sufficiently culpable state of mind to
establish deliberate indifference.
A prison medical provider acts with deliberate indifference when she “knows of and
disregards an excessive risk to inmate health or safety.” Chance, 143 F.3d at 702. The medical
provider must “both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. By
contrast, mere negligence, even that which is tantamount to medical malpractice, does not amount
to an Eighth Amendment violation. Estelle, 429 U.S. at 106 (1976) (“[A] complaint that a
physician has been negligent in diagnosing or treating a medical condition does not state a valid
claim of medical mistreatment under the Eighth Amendment.”); Hathaway, 37 F.3d at 66 (2d Cir.
1994) (“[d]eliberate indifference requires more than mere negligence, but less than conduct
undertaken for the very purpose of causing harm”); Chance, 143 F.3d at 703 (holding that
“negligence, even if it constitutes medical malpractice, does not, without more, engender a
constitutional claim”).
It is now well-settled that, without more, neither misdiagnosis by prison medical staff nor
disagreement over the proper course of treatment rises to the level of a constitutional violation.
Estelle, 429 U.S. at 106; see also Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d
303, 312 (S.D.N.Y. 2001) (“[D]isagreements over medications, diagnostic techniques (e.g., the

15

need for X-rays), forms of treatment, or the need for specialists or the timing of their intervention,
are not adequate grounds for a Section 1983 claim. These issues implicate medical judgments and,
at worst, negligence amounting to medical malpractice, but not the Eighth Amendment.”). Rather,
to state an Eighth Amendment claim an inmate “must demonstrate that the defendants act[ed] or
fail[ed] to act while actually aware of a substantial risk that serious inmate harm w[ould] result.”
Farid v. Ellen, 593 F.3d 233, 248 (2d Cir. 2010) (alterations in original) (internal quotation marks
omitted). Additionally, “[w]hile disagreements regarding choice of treatment are generally not
actionable under the Eighth Amendment, judgments that have no sound medical basis, contravene
professional norms, and appear designed simply to justify an easier course of treatment (in this
case, no treatment) may provide the basis of a claim.” Stevens v. Goord, 535 F. Supp. 2d 373, 388
(S.D.N.Y. 2008).
Applying these principles here, Plaintiff’s central claim— that Defendants failed to
properly diagnose the nature of his condition or its severity—does not give rise to a constitutional
violation. As discussed, the mere fact that Defendants misdiagnosed Plaintiff or failed to recognize
the severity of his medical condition—even if their mistake was obvious or highly consequential—
cannot, standing alone, support an Eighth Amendment claim. See, e.g., Thomas v. Wright, No.
Civ. 9:99–CV–2071 (FJS/GLS), 2002 WL 31309190, at *8 (N.D.N.Y. Oct. 11, 2002) (granting
summary judgment for prison medical provider-defendants who failed to diagnose an inmate’s
colon cancer for nearly one year, during which time they treated his symptoms with only stool
softener, milk of magnesia, antibiotics, and Metamucil); Sheils v. Flynn, No. 9:06–CV–407, 2009
WL 2868215, at *18 (S.D.N.Y. Sept. 2, 2009) (“While Defendants' failure to immediately
diagnose the lesion on Plaintiff's shoulder as cancer was undoubtedly frustrating and frightening

16

for Plaintiff, the record simply does not indicate any behavior on Defendants' part that elevates the
situation from possible medical malpractice to the level of a constitutional violation.”); Felipe v.
New York State Dep't of Correctional Servs., No. 95-CV-1735, 1998 WL 178803, at *3 (N.D.N.Y.
Apr. 10, 1998) (Pooler, D.J.) (granting defendants judgment on pleadings where plaintiff who
complained of stomach pains was eventually diagnosed with gallbladder disease which required
surgery; “[a]lthough [plaintiff] may have disagreed with their form of treatment, such as their
administration of Mylanta and Zantac and their directive to drink lots of fluids, there is no
allegation that any of these staff members were actually aware that such treatment was inadequate.
Plaintiff's allegations amount to nothing more than possible medical malpractice or negligence”).
Plaintiff has presented no evidence that his diagnosis and treatment were so devoid of
sound medical basis or far afield of accepted professional standards as to raise an inference of
deliberate indifference. Stevens, 535 F. Supp. at 388. Nor does Plaintiff claim that Defendants
made medical decisions “designed simply to justify an easier course of treatment,” despite being
less efficacious. Id. See also Chance, 143 F.3d at 703 (“In certain instances, a physician may be
deliberately indifferent if he or she consciously chooses ‘an easier and less efficacious' treatment
plan.”). Further, to the extent Green alleges that he was suffering from additional ailments that
Defendants failed to diagnose, he has provided no evidence that these medical issues—which were
diagnosed nearly two years after Plaintiff’s last meeting with either Defendant, and after his
condition had worsened—were present during his consultation with either Defendant, much less
that Defendants acted with flagrant disregard to his health. Chance, 143 F.3d at 703.
To the contrary, the record shows that both Nurses took reasonable, affirmative steps to
diagnose and treat Plaintiff's condition. Both, for example, had reasonable basis to believe that

17

Green had a standard case of hemorrhoids. In Defendant Shaw’s case, Green’s symptoms and
physical condition were consistent with hemorrhoids, particularly in light of his Ramadan fast.
And Defendant Brennan was consulted specifically to address Plaintiff’s concerns about his
hemorrhoids. 6 Based on Plaintiff’s condition and recent onset of symptoms, it was also reasonable
that both nurses advocated a preliminary treatment plan centered on self-help measures to prevent
flare-ups and use of hemorrhoid cream. See, e.g., Walker v. Kubicz, 996 F. Supp. 336, 341
(S.D.N.Y. 1998) (dismissing Eighth Amendment claim for failure to treat and diagnose prisoner’s
pneumonia because prison doctors prescribed prisoner a preliminary course of treatment and, once
becoming aware of the seriousness of prisoner’s symptoms, promptly sought emergency care);
Johnson v. Wright, 477 F. Supp. 2d 572, 576 (W.D.N.Y. 2007) (“That plaintiff may have preferred
a more aggressive course of treatment . . . does not show that defendants acted wantonly with the
purpose of causing him pain.”). Indeed, numerous courts in this Circuit have found that treatment
similar to that which Plaintiff concedes was administered here is sufficient to pass muster under
the Eighth Amendment. See, e.g., Black, 2010 WL 2985081, at *10 (nurse who provided plaintiff
experiencing hemorrhoids with ointment, a stool softener, and instructions to drink water and
exercise “acted reasonably in treating plaintiff's hemorrhoid”); Youngblood, 2012 WL 4051846,
at *8–*9 (no deliberate indifference where inmate complaining of hemorrhoids was given “stool
softeners and ointment” by a nurse); Domenech v. Taylor, No. 9:09–CV–162 (FJS/DEP), 2010
WL 6428459, at *8 (N.D.N.Y. Sept. 8, 2010) (same where inmate was given “hemorrhoidal cream,

6

Indeed, this diagnosis was confirmed by multiple medical providers from different
institutions over the next two years, further contradicting Plaintiff’s allegations that Defendants
were deliberately indifferent. See Snyder v. Monroe, No. 15 CV 4033 (VB), 2018 WL 722421,
at *6 (S.D.N.Y. Feb. 5, 2018), appeal dismissed sub nom. Snyder v. Provider Miss Monroe, No.
18-673, 2018 WL 7571445 (2d Cir. Sept. 12, 2018).
18

cleansing pads, suppository pads, and a stool softener”), report and recommendation adopted,
2011 WL 1214431 (N.D.N.Y. Mar. 31, 2011); Castillo v. Rodas, No. 09 CIV. 9919 AJN, 2014
WL 1257274, at *7 (S.D.N.Y. Mar. 25, 2014) (same where inmate was given hemorrhoid cream).
Nurse Shaw also specifically instructed Plaintiff to return within three to four days if his condition
did not improve—which he did not. We also note that the evidence of record shows that each
Defendant only interacted with Green once—itself strong evidence that the Defendants were not
deliberately indifferent. See Lloyd v. Lee, 570 F. Supp. 2d 556, 569–70 (S.D.N.Y. 2008) (Chin,
D.) (dismissing complaint against two prison medical providers who had each only seen the
plaintiff once shortly after the onset of his medical issues because “[t]he claim of deliberate
indifference is not plausible . . . given their limited roles early in Lloyd's treatment”). 7
Plaintiff’s allegations stemming from Defendants’ diagnosis-related decisions—
specifically, that Defendants should have conducted a rectal examination and referred him to a
doctor 8—do not alter this analysis. Diagnostic techniques and treatment selection are “classic

7

The parties disagree as to several factual details concerning Plaintiff’s interactions with
the Defendants, including whether Plaintiff’s vital signs were within normal range [see Doc. 243 ¶ 21; Doc. 29 at 18 ¶¶ 9, 63] and whether Plaintiff told Defendant Brennan that he was
bleeding from his rectum [see Doc. 24-5, Pl.’s Ex. C ¶¶ 16, 18]. None of the disputed facts is
material. At most, they may provide evidence of negligence, which cannot constitute the basis of
an Eighth Amendment claim. Chance, 143 F.3d at 702; see also Beaman v. Unger, 838 F. Supp.
2d 108, 110 (W.D.N.Y. 2011) (“The most that [the plaintiff's] allegations show, however, is that
the [defendants] misdiagnosed his injuries, and failed to recognize the severity of those injuries.
Such allegations might conceivably show malpractice, but they do not state an Eighth
Amendment claim.”) (citations omitted); Irby v. Frisnia, 119 F. Supp. 2d 130, 132 (N.D.N.Y.
2000) (granting summary judgment for insufficient evidence as to deliberate indifference where
defendants were “[a]t most ... guilty of negligence” in failing to diagnose plaintiff's injury, but
where “this misdiagnosis was based on a reasonable, although incorrect, assessment of Plaintiff's
condition”); Halstat v. Bellon, No. 3:13-cv-779 (JCH), 2014 WL 47494078, at *4 (D. Conn.
Sept. 23, 2014).
8

The parties dispute whether Plaintiff requested a consultation with a doctor. See Doc.
19

example[s] of matters for medical judgment”; accordingly, prison medical staff are vested with
broad discretion to determine what method of diagnosis and treatment to provide their patients.
Estelle, 429 U.S. at 107, 97 S.Ct. at 293; Chance, 143 F.3d at 703; Rosales v. Coughlin, 10 F.
Supp. 2d 261, 264 (W.D.N.Y. 1998).
In Sanchez v. RN Debbie, for example, this court dismissed claims against two prison
nurses who failed to diagnose plaintiff's pneumonia after refusing plaintiff’s request to examine
his chest and lungs or perform an EKG. No. 3:18-CV-1505 (JCH), 2018 WL 5314916, at *7-*9
(D. Conn. Oct. 26, 2018). One nurse also stated that she would refer plaintiff to a doctor the next
day, but failed to do so. Id. at *7-*8. The court held that the nurses had not been deliberately
indifferent in declining to conduct the diagnostic procedures requested by plaintiff: “[t]he fact that
her examination may not have been as thorough as Sanchez may have liked, constitutes, at most,
negligence.”

Id. at *8. Similarly, in Freeman, plaintiff, who ultimately had to undergo an

appendectomy due to his medical condition, alleged that a prison nurse who “just [gave plaintiff]
a bottle of Kaeopectate” to address his symptoms was deliberately indifferent in refusing to refer
him to a doctor or conduct a physical examination. 2000 WL 1459782, at *36. The court granted
summary judgment for the nurse, finding that “[e]ven if Nurse Frater should have examined
Freeman more closely on November 6, referred him to a doctor or suggested a follow-up visit if
his condition did not improve, Nurse Frater's treatment would constitute at most negligence, which
does not give rise to an Eighth Amendment claim.” Id. at *9.

24-3 ¶ 53; Doc. 29 at 26 ¶ 61. For purposes of this motion, we will assume that Plaintiff did
request a referral.
20

Here, Plaintiff’s allegations amount to no more than disagreements as to the proper party
and technique to diagnose Plaintiff’s medical condition. But a prisoner has no right to dictate the
course of his medical treatment. See Johnson v. Newport Lorillard, No. 01 CIV. 9587 (SAS), 2003
WL 169797, at *3 (S.D.N.Y. Jan. 23, 2003); see also Jackson v. Kaufman, No. 13 CIV. 6544 PAC
DF, 2015 WL 5521432, at *11 (S.D.N.Y. Sept. 18, 2015) (“Plaintiff's apparent argument that he
was entitled to examination and treatment by a physician, rather than by nurses is unsupported by
any legal authority.”); White v. Williams, No. 9:12-CV-1892, 2016 WL 1237712, at *12 (N.D.N.Y.
Jan. 11, 2016), report and recommendation adopted, No. 912CV1892GLSATB, 2016 WL
1239263 (N.D.N.Y. Mar. 29, 2016) (plaintiff’s belief that prison nurse should have referred him
to a doctor to treat injuries sustained in an attack “amounts to a dispute over the appropriate
treatment, and does not state an Eighth Amendment claim”); Sereika v. Patel, 411 F. Supp. 2d 397,
407 (S.D.N.Y. 2006) (allegations that plaintiff was examined by physicians assistants rather than
a doctor did not state a claim for deliberate indifference); Palacio v. Ocasio, No. 02-CV-6726
(PAC)(JCF), 2006 WL 2372250, at *11 (S.D.N.Y. Aug. 11, 2006), aff'd sub nom. Palacio v.
Pagan, 345 F. App'x 668 (2d Cir. 2009) (“Defendant Edano's decision not to x-ray Palacio's jaw
and his failure to diagnose the fracture do not support a claim under 42 U.S .C. § 1983. Viewed in
a light most favorable to the Plaintiff, the record does not suggest that Edano evinced a culpable
recklessness in the manner in which he diagnosed Palacio's injury.”). Even assuming that
Defendants should have conducted a rectal exam or referred Plaintiff to a doctor, absent evidence
that Defendants acted with a culpable state of mind—which does not exist here—Defendants’
“treatment would constitute at most negligence, which does not give rise to an Eighth Amendment
claim.” Freeman 2000 WL 1459782, at *8.

21

Based on the foregoing, no reasonable trier of fact could find that the Defendants acted
with deliberate indifference to Plaintiff's serious medical needs in violation of his constitutional
rights. Accordingly, Defendants are entitled to summary judgment as a matter of law dismissing
Plaintiff's complaint.
C.

Qualified Immunity

Finally, the Defendants argue that they are protected by qualified immunity. Qualified
immunity “protects government officials ‘from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)).

Qualified immunity “affords government officials

‘breathing room’ to make reasonable—even if sometimes mistaken—decisions.” Distiso v. Cook,
691 F.3d 226, 240 (2d Cir. 2012) (quoting Messerschmidt v. Millender, 565 U.S. 535, 553 (2012)).
“The qualified immunity standard is ‘forgiving’ and ‘protects all but the plainly incompetent or
those who knowingly violate the law.’” Grice v. McVeigh, 873 F.3d 162, 166 (2d Cir. 2017)
(quoting Amore v. Novarro, 624 F.3d 522, 530 (2d Cir. 2010)).
In determining whether an official is entitled to qualified immunity, courts consider
whether (1) the facts alleged or shown by the plaintiff state a violation of a statutory or
constitutional right by the official and (2) the right was clearly established at the time of the
challenged conduct. See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citation omitted). A court
may consider these two questions in either order and, if it determines that one prong is not satisfied,
it need not reach the other. See Pearson v. Callahan, 555 U.S. 223, 236 (2009)

22

With respect to the first prong, the Court has determined that Green fails to establish that
the Defendants violated his constitutional or statutory rights. On that basis alone, Defendants are
entitled to summary judgment on the issue of qualified immunity. See, e.g., Moore v. Kwan, No.
12-CV-4120 (VSB), 2016 WL 9022575, at *17 (S.D.N.Y. Mar. 30, 2016) (finding that prison
medical staff members were entitled to qualified immunity because Plaintiff had failed to show an
underlying constitutional violation), aff'd, 683 F. App'x 24 (2d Cir. 2017) (citing Kelsey v. Cnty.
of Schoharie, 567 F.3d 54, 62 (2d Cir. 2009)).
Even if the Court had found an issue of fact as to the constitutional claim, however, the
Defendants would be entitled to qualified immunity under the second prong of the test. Under the
second prong, a right is clearly established if, “it would be clear to a reasonable official that his
conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001).
“[A] broad general proposition” does not constitute a clearly established right.

Reichle v.

Howards, 566 U.S. 658, 665 (2012). Rather, “the clearly established right must be defined with
specificity,” City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019), and “‘particularized’ to the
facts of the case.” White, 137 S. Ct. at 552 (citing Anderson, 483 U.S. at 640). Put differently, the
specific legal principle at issue must clearly prohibit the officer’s conduct in the particular
circumstances before him. District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018).
Here, the Defendants do not argue that Green’s right to adequate medical care was not
clearly established. Rather, they contend that under the circumstances of this case, they would not
have understood that their actions violated that right. Green concedes that Defendant Shaw
diagnosed hemorrhoids, offered some treatment suggestions to relieve his symptoms, and
instructed him to return if the symptoms continued. Green did not return and Defendant Shaw

23

never saw him again. Under these facts, Defendant Shaw’s initial conservative treatment was
objectively reasonable, and falls far short of something that a reasonable medical provider would
believe to be unlawful. Thus, Defendant Shaw would be protected by qualified immunity.
Defendant Brennan also saw Green only once.

She answered questions regarding

hemorrhoids, and advised him on how to reduce the severity. Even assuming Green told her that
he was bleeding from his rectum and asked to see a doctor, Defendant Brennan would not have
understood that her alleged failure to schedule a doctor exam violated Green’s constitutional right
to adequate medical treatment. Green appeared satisfied with her responses to his questions. He
did not return to see Defendant Brennan or inform her that the information she provided was
ineffective regarding his condition. The Court thus concludes that Defendant Brennan would also
be protected by qualified immunity.
IV.

Conclusion
For the foregoing reasons, Defendants’ motion for summary judgment [Doc. 24] is

GRANTED. The Clerk is directed to enter judgment in favor of the Defendants and close this
case.
It is SO ORDERED.
Dated: New Haven, Connecticut
March 29, 2019
/s/ Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

24