Decayette v. Goord et al

Filing 44

REPORT AND RECOMMENDATIONS that the 36 MOTION for Summary Judgment filed by Martin, Michael Allard, Volpe, Sgt. Berry, Suggs, Glenn S. Goord, Meeks be Granted in Part and Denied in Part. Objections to R&R due by 4/14/2009 Case Review Deadline 4/20/2009. Signed by Magistrate Judge George H. Lowe on 3/31/09. [Report Recommendation and electronically available only cases served on Plaintiff via regular mail]. (Attachments: # 1, # 2, # 3, # 4, # 5, # 6, # 7 )(rjb, )

Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2004 W L 1125177 (W .D .N .Y .) ( C ite as: 2004 W L 1125177 (W . D . N . Y . ) )

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O n ly the W e s tla w citation is currently available.

U n ite d States District Court, W . D . New York. A n th o n y ROSS, 94-A-6742, Plaintiff, v. M ic h a e l MCGINNIS, Superintendent; Dr. Shah, M.D.; J o h n V. Hagn, RN; Paul Daugherty, NP; Victor Herbert, S u p e r in te n d e n t; Robert Takos, MD; Stephen Laskowski, M D ; B. Higley, RN; C. Yohe, RN; Susan Nolder, RN; and S h e r le y Stewart, RN Defendants. N o . 00-CV-0275E(SR).

U .S .C . § 1983, alleges that defendants denied him adequate m e d ic a l treatment during his incarceration at Southport C o r r e c tio n a l Facility ("Southport"), and Attica Correctional F a c ility ("Attica"), in violation of his constitutional rights u n d e r the Eighth and Fourteenth Amendments to the United S ta te s Constitution. Dkt. # 83. Specifically, plaintiff claims th a t officials at these facilities were deliberately indifferent to his complaints of abdominal pain, vomiting, heartburn, c o n s tip a tio n , body odor, and extreme body heat. Dkt. # 83.

C u r r e n tly before me is plaintiff's motion to compel p r o d u c tio n of documents (Dkt.# 92), and defendants' motion fo r summary judgment. Dkt. # 103. For the following r e a s o n s , plaintiff's motion is denied and defendants' motion is granted.

M a r c h 29, 2004. BACKGROUND A n th o n y Ross, Comstock, NY, pro se. U p o n plaintiff's transfer to Southport on August 24, 1998, p la in tiff indicated no chronic medical problems or current m e d ic a l complaints. Dkt. # 114, Exh. A.

M ic h a e l A. Siragusa, New York State Attorney General's O ffic e , Buffalo, NY, for Defendants.

D E C I S I O N AND ORDER

S C H R O E D E R , Magistrate J.

* 1 Pursuant to 28 U.S.C. § 636(c), the parties have c o n s e n te d to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of fin a l judgment. Dkt. # 29.

O n October 10, 1998, Registered Nurse John VonHagn ( " R N VonHagn"), examined plaintiff for complaints of s to m a c h upset, bubbling and gas. Dkt. # 106, ¶ 9. RN V o n H a g n dispensed one bottle of Maalox to plaintiff. Dkt. # 106, ¶ 9. Plaintiff was given another bottle of Maalox on O c to b e r 14, 1998. Dkt. # 106, ¶ 10. W h e n plaintiff requested a third bottle of Maalox on October 16, 1998, RN VonHagn in s te a d gave plaintiff Alamay, a heartburn medication. Dkt. # 106, ¶ 11. Plaintiff was prescribed Zantac on October 18, 1 9 9 8 . Dkt. # 107, ¶ 8.

P la in ti ff's third amended pro se complaint, pursuant to 42

O n November 3, 1998, RN VonHagn ordered Simethecone fo r plaintiff after he complained of gas and belching after

© 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s .

Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2004 W L 1125177 (W .D .N .Y .) ( C ite as: 2004 W L 1125177 (W . D . N . Y . ) )

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e a tin g and indicated concern that he had an infection in his s to m a c h . Dkt. # 106, ¶ 14.

O n November 17, 1998, plaintiff informed RN VonHagn th a t he was not experiencing any relief from the medication p r e s c r ib e d and complained that his body was hot and that he th o u g h t he had an infection in his stomach. Dkt. # 106, ¶ 15. R N VonHagn scheduled an appointment for plaintiff with N P Dougherty. Dkt. # 106, ¶ 15.

O n December 23, 1998, plaintiff continued to complain of s t o m a c h problems to RN Higley, but refused to take his Z a n ta c . Dkt. # 109, ¶ 7. RN Higley again placed plaintiff on th e weekend sick-call list. Dkt. # 109, ¶ 7. Plaintiff again r e fu s e d his Zantac on December 27, 1998. Dkt. # 114, ¶ 6.

O n November 20, 1998, NP Dougherty examined plaintiff fo r complaints of gastric distress and prescribed a blood test to rule our Heliobactor Pylori. Dkt. # 107, ¶ 6. NP D o u g h e r ty avers that the results were negative. Dkt. # 107, ¶ 6. Because plaintiff's gastric acidity was higher than n o r m a l, plaintiff was "continued on Zantac, which is used to tr e a t acid reflux, and which is the medication of choice for h y p e r a c id ity." D k t. # 107, ¶ 6.

A t plaintiff's request, Dr. Laskowski discontinued the Zantac p r e s c r ip tio n on December 27, 1998. Dkt. # 114, ¶ 7. H o w e v e r , the Zantac prescription was renewed by Dr. L a s k o w s k i and provided to plaintiff during the evening of D e c e m b e r 29, 1998 after plaintiff requested Zantac during s ic k -c a ll that morning. Dkt. # 114, ¶ 8. RN Higley noticed no c h a n g e in plaintiff's weight on that date. Dkt. # 109, ¶ 8.

D r . Laskowski examined plaintiff for complaints of e p ig a s tr ic distress on January 1, 1999. Dkt. # 109, ¶ 8. P la in tiff reported that Zantac was partially helpful. Dkt. # 1 1 4 , ¶ 9. Dr. Laskowski prescribed blood work for plaintiff. D k t. # 114, ¶ 9.

P la in tiff was transferred to Attica on or about December 13, 1998.

O n January 3, 1999, plaintiff complained of a stomach ache to RN Stewart, who provided him with Amalay. Dkt. # 108, ¶ 9.

O n December 14, 1998, plaintiff complained to Registered N u r s e Barbara Higley ("RN Higley"), that he was e x p e r ie n c in g increased burping and gas and that the Zantac w a s not helping his stomach problems. Dkt. # 109, ¶ 6. RN H ig le y placed plaintiff on the weekend sick-call list as he r e q u e s te d . Dkt. # 109, ¶ 6.

O n January 17, 1999, Dr. Laskowski received the results of p la in t iff's blood work, which was positive for H-Pylori, a b a c te r ia which causes gastritis. Dkt. # 114, ¶ 12. Plaintiff's H -P y lo r i reference range was 32. Dr. Laskowski prescribed a n tib io tic s and anti-acids to treat this condition. Dkt. # 114, ¶ 12.

* 2 On December 17, 1998, while distributing medications, p la in tiff complained of abdominal discomfort to Registered N u r s e Stewart ("RN Stewart"), but refused his Zantac until h e saw the doctor. Dkt. # 108, ¶ 6. RN Stewart placed the p la in t i f f on the "Physician's Assistant call-out" list. Dkt. # 1 0 8 , ¶ 6. Plaintiff again refused to take his Zantac on D e c e m b e r 22, 1998, stating that it was not working. Dkt. # 1 0 8 , ¶ 8.

O n January 25, 1999, plaintiff refused his monthly weight c h e c k by RN Higley. Dkt. # 109, ¶ 9.

O n February 8, 1999, plaintiff asked to have x-rays taken of h is abdomen. Dkt. # 109, ¶ 10. RN Higley placed plaintiff on th e weekend call-out list. Dkt. # 109, ¶ 10.

© 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s .

Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2004 W L 1125177 (W .D .N .Y .) ( C ite as: 2004 W L 1125177 (W . D . N . Y . ) )

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O n February 13, 1999, plaintiff reported substantial im p r o v e m e n t in his symptoms following treatment for H -P y lo r i. Dkt. # 114, ¶ 13. Dr. Laskowski planned to " c o n tin u e a full course of H2 blockers after the antibiotoc th e a r p y is completed."Dkt. # 114, ¶ 13.

O n April 29, 1999, Dr. Laskowski advised plaintiff to d is c o n tin u e Prilosec and wait the results of the GI consult. D k t. # 114, ¶ 21.

O n February 27, 1999, plaintiff complained of abdominal p r o b le m s to RN Higley and was placed on the weekend c a ll-o u t list. Dkt. # 109, ¶ 11. On February 28, 1999, Dr. L a s k o w s k i examined plaintiff and diagnosed him with r e s id u a l gastritis and possible urinary tract infection. Dkt. # 1 1 4 , ¶ 14. Dr. Laskowski ordered a urine test and prescribed A v id for plaintiff. Dkt. # 114, ¶ 14.

P lain tiff w a s e x a m in e d b y D r. C ha u d h ry, a G a s tr o e n te r o lo g is t, on April 30, 1999. Dkt. # 114, ¶ 22. Dr. C h a u d h r y observed no acute distress and diagnosed plaintiff w ith chronic dyspepsia. Dkt. # 114, ¶ 22. Dr. Chaudhry r e c o m m e n d e d an upper endoscopy and ordered blood work to test whether the H-Pylori had cleared up. Dkt. # 114, ¶ 22. D r . Takos ordered a complete blood work-up for plaintiff on M a y 27, 1999. Dkt. # 114, ¶ 24.

O n March 4, 1999, plaintiff informed Dr. Laskowski that he c o n tin u e d to experience gastric burning and pain despite the p r e s c r i p t i o n of Avid. Dkt. # 114, ¶ 15. Dr. Laskowski p r e s c r ib e d Prilosec and determined that he would request a g a s tr ic consult if the symptoms continued. Dkt. # 114, ¶ 16.

O n May 29, 1999, plaintiff requested anti-acid tablets to r e lie v e his complaints of stomach pain which was creating " h e a t that comes up to my head."Dkt. # 112, ¶ 6. Registered N u r s e Cathie Yohe Turton ("RN Turton"), noted that p la in tiff was scheduled to meet with Dr. Takos and provided p la in tiff with the anti-acid tablets he requested. Dkt. # 112, ¶ 6.

* 3 On March 5, 1999, plaintiff complained of abdominal p a in and informed RN Higley that the antibiotics were not h e lp in g . Dkt. # 109, ¶ 12. RN Higley placed plaintiff on the w e e k e n d sick-call list. Dkt. # 109, ¶ 12.

O n June 2, 1999, plaintiff was examined by Dr. Takos, who o r d e r e d lab work to rule out ulcers. Dkt. # 111, ¶ 6. The lab w o r k reported a H-Pylori level of 15, which is an equivocal r a n g e . Dkt. # 114, Exh. A, p. 76. Plaintiff also received an x -r a y of his abdomen, which revealed "a normal gas p a tte r n ." Dkt. # 114, Exh. A, p. 84.

O n March 7, 1999, Dr. Laskowski encouraged plaintiff to c o n t i n u e taking Prilosec despite his report of no im p r o v e m e n t, as Dr. Lakowski felt that plaintiff had not been ta k i n g the medication for a sufficient period of time to be a b le to assess its efficacy. Dkt. # 114, ¶ 17.

O n June 7, 1999, plaintiff complained that he smelled, but D r . Takos "was unable to appreciate any odor or smell about th e patient while in the examination room."Dkt. # 111, ¶ 6.

O n April 8, 1999, Dr. Laskowski referred plaintiff to a GI s p e c ia lis t for an upper endoscopy after plaintiff reported that th e Prilosec and anti-acids were not relieving his symptoms. D k t. # 114, ¶ 19.

O n June 11, 1999, plaintiff again complained of gas to RN T u r to n , but refused her recommendation of Simethecone. D k t. # 112, ¶ 6. RN Turton provided plaintiff with the m e d ic a tio n plaintiff requested. Dkt. # 112, ¶ 6.

© 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s .

Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2004 W L 1125177 (W .D .N .Y .) ( C ite as: 2004 W L 1125177 (W . D . N . Y . ) )

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O n June 18, 1999, Dr. Laskowski examined plaintiff and r e a s s u r e d him that no additional treatment was necessary at th a t time. Dkt. # 114, ¶ 28.

O n June 29, 1999, plaintiff requested Simthecone but c o m p la in e d that he was still experiencing gas even with this m e d ic a tio n . Dkt. # 112, ¶ 6. RN Turton noted that plaintiff w a s scheduled for medical call-out with Dr. Takos the next d a y , so she advised him to wait until his appointment before ta k in g any additional medication. Dkt. # 112, ¶ 6. RN Turton r e v ie w e d plaintiff's medical records, including his c o m p la in ts of "bad odor" "made by my body" which "comes o u t of my head," and, unable to detect any odor when p la in tiff was in her presence, referred plaintiff for a mental h e a lth evaluation. Dkt. # 112, ¶ 6.

O n July 21, 1999, plaintiff complained of stomach pain and s o r e n e s s between his toes. Dkt. # 112, ¶ 12. RN Turton n o te d that plaintiff had already been prescribed medication to take for relief of his gastritis and provided plaintiff with a n tifu n g a l powder for his feet. Dkt. # 112, ¶ 12.

O n July 23, 1999, Registered Nurse Susan Nolder ("RN N o ld e r " ) , provided plaintiff with Maalox in response to his c o m p la in ts of GI upset. Dkt. # 113, ¶ 6. On July 26, 1999, p la in tiff complained of stomach problems and body odor, b u t refused RN Nolder's offer of Simthecone. Dkt. # 113, ¶ 7.

* 4 On June 30, 1999, Dr. Takos found no masses or te n d e r n e s s upon examination of plaintiff's abdomen. Dkt. # 1 1 1 , ¶ 9. Dr. Takos continued plaintiff's prescription for S im e th e c o n e for gas relief. Dkt. # 111, ¶ 9.

O n August 9, 1999, plaintiff complained that he was v o m itin g and could not keep food down. Dkt. # 113, ¶ 9. RN N o ld e r weighed plaintiff and determined that there had been n o significant change in plaintiff's weight and noted that p la in tiff was scheduled to be seen for a GI consult that m o n th . Dkt. # 113, ¶ 9.

O n July 10, 1999, plaintiff again complained to RN Turton th a t "there is something eating me up inside," that he was e x p e r ie n c in g "constant bubbling" from his groin up to his h e a d , and that there was a bad odor coming from his body. D k t. # 112, ¶ 10. RN Turton could not detect any odor and a d v is e d plaintiff to continue taking Simthecone pending his G I referral. Dkt. # 112, ¶ 10.

A u g u s t 20, 1999, Dr. Chaudhry examined plaintiff in fo llo w -u p for his diagnosis of chronic dyspepsia. Dkt. # 114, E x h . A, p. 93. Dr. Chaudhry noted that plaintiff had p r e v io u s ly cancelled an upper endoscopy because he didn't w a n t to be sedated, but was experiencing increasingly worse s y m p to m s . Dkt. # 114, Exh. A, p. 93. Accordingly, Dr. C h a u d h r y recommended that the upper endoscopy under IV s e d a tio n be rescheduled. Dkt. # 114, Exh. A, p. 93.

O n July 12, 1999, plaintiff complained to RN Turton that his h e a d was sore under the skin and that he had vomited the day b e fo r e . Dkt. # 112, ¶ 11. RN Turton determined that plaintiff w a s in no acute distress and noted that he was scheduled for th e GI Clinic and a doctor call-out. Dkt. # 112, ¶ 11.

O n August 29, 1999, RN Turton examined plaintiff with r e s p e c t to stomach complaints, determined he was not in a c u te distress, noted he was scheduled for an endoscopy, and p r o v id e d him with Maalox. Dkt. # 112, ¶ 13.

O n July 15, 1999, plaintiff was examined by Dr. Laskowski fo r complaints of urinary problems which were treated with a urine test and antibiotic. Dkt. # 114, ¶ 33.

O n August 31, 1999, plaintiff was seen by Dr. DePerio with c o m p l a i n ts of a stomach virus. Dkt. # 114, ¶ 39. Plaintiff

© 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s .

Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2004 W L 1125177 (W .D .N .Y .) ( C ite as: 2004 W L 1125177 (W . D . N . Y . ) )

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r e q u e s te d to be seen by Dr. Laskowski instead. Dkt. # 114, ¶ 39. Dr. Laskowski examined plaintiff and noted that an u p p e r endoscopy was being rescheduled. Dkt. # 114, ¶ 40.

a b d o m e n , and of strained bowel movements. Dkt. # 113, ¶ 1 5 . RN Nolder provided plaintiff with fiber. Dkt. # 113, ¶ 15.

* 5 Dr. Chaudhry performed an upper endoscopy on plaintiff o n September 14, 1999, revealing a "small hiatal hernia" and " m i l d reflux esophagitis." Dkt. # 114, ¶¶ 41-42. Dr. C h a u d h r y recommended anti-reflux measures and Prilosec, w h ic h was prescribed by Dr. Laskowski. Dkt. # 114, ¶ 42.

O n November 30, 1999, Dr. Laskowski referred plaintiff b a c k to Dr. Chaudhry in response to plaintiff's complaints th a t the Prilosec was not helping and that he had body odor. D k t. # 114, ¶ 46.

O n September 23, 1999, RN Nolder scheduled plaintiff to s e e the physician's assistant to rule out a urinary tract in fe c tio n in response to plaintiff's complaints of straining and s m e ll with urination and sweat. Dkt. # 113, ¶ 11.

O n December 13, 1999, plaintiff requested Maalox and A d v il. Dkt. # 113, ¶ 16. RN Nolder provided him with M a a lo x , but substituted Tylenol for Advil because of p la in tiff's history of Gl distress. Dkt. # 113, ¶ 16.

O n October 8, 1999, plaintiff complained to RN Turton that P r i l o s e c was not helping his symptoms and was given a d d itio n a l medication as requested. Dkt. # 112, ¶ 14. On O c to b e r 14, 1999, RN Nolder renewed plaintiff's p r e s c r ip tio n for Prilosec. Dkt. # 113, ¶ 12. Plaintiff c o m p la in e d that Prilosec was ineffective and claimed that his a r m p it smelled like feces, causing RN Nolder to schedule p la in tiff for a call-out with Dr. Laskowski. Dkt. # 113, ¶ 12.

D r . Chaudhry examined plaintiff on December 17, 1999 and n o te d no weight loss and no acute distress. Dkt. # 114, ¶ 47. D r . Chaudhry recommended a barium enema and upper Gl to rule out irritable bowel syndrome. Dkt. # 114, ¶ 47. If the fin d in g s were normal, Dr. Chaudhry recommended treatment w ith a mild-antidepressant. Dkt. # 114, ¶ 47. Dr, Chaudhry a ls o recommended indefinite continuation of Prilosec or P r e v a c id for the hiatal hernia and reflux. Dkt. # 114, ¶ 47.

O n October 20, 1999, plaintiff complained of pains in his c h e s t and gas "running all around the body." Dkt. # 113, ¶ 1 2 . RN Nolder took plaintiff's blood pressure, which was n o r m a l, noted that he was scheduled to see Dr. Laskowski, a n d provided him with Simethecone. Dkt. # 113, ¶ 13.

P la in tif f continued to complain of stomach problems on J a n u a r y 3, 2000 and was seen by Dr. Laskowski in response to those complaints on January 6, 2000. Dkt. # 113, ¶ 17.

T h e upper Gl series was completed on January 19, 2000, r e v e a lin g normal esophagus, stomach, duodenum and bowel m o tility . Dkt. # 114, ¶ 49.

O n October 27, 1999, plaintiff complained of "shitty s m e llin g armpits." Dkt. # 113, ¶ 14. RN Nolder noted no o d o r and advised plaintiff to speak to Dr. Laskowski about h is concerns. Dkt. # 113, ¶ 14.

O n February 10, 2000, RN Nolder provided plaintiff with a s to o l softener as requested. Dkt. # 113, ¶ 17.

O n November 5, 1999, plaintiff complained of pain in his a r m p it, which moved down into his lower chest and

* 6 Plaintiff again requested Advil on February 18, 2000, but w a s provided with Tylenol by RN Nolder because of the

© 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s .

Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2004 W L 1125177 (W .D .N .Y .) ( C ite as: 2004 W L 1125177 (W . D . N . Y . ) )

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c o n tr a in d ic a tio n of Advil for individuals with gastric issues. D k t. # 113, ¶ 19.

D k t. # 111, ¶ 12; Dkt. # 114, ¶ 55.

D r . Laskowski prescribed Prozac for plaintiff, but was in fo r m e d that this medication could only be ordered by a p s y c h ia tr is t. Dkt. # 114, ¶ 51. After consultation with p s y c h ia tr y , plaintiff was prescribed Elavil, "a similar m e d ic a tio n used for Gl pathology."Dkt. # 114, ¶ 51. "After a lengthy discussion with the plaintiff regarding the use of E la v il, and the rational for the treatment, the plaintiff refused th e same."Dkt. # 114, ¶ 51. Plaintiff states that he refused the E la v il because of fears that Dr. Laskowski "was e x p e r im e n tin g on him" and because "he has no mental p r o b le m and ... won't take any mental health medication for s to m a c h pain."Dkt. # 118, ¶¶ 68-69.

I n opposition to defendants' motion for summary judgment, p la in tiff submitted affidavits from two inmates who noticed " a pungent odor" and "smells of feces" coming from p la in tiff's body. Dkt. # 119. Plaintiff also submitted a letter fr o m one cell mate complaining that plaintiff "be gasing all th e time and he also be smelling like urine everyday, even a fte r he takes a shower" and another cell mate complaining t h a t he was "really in a difficult situation by being in a d o u b le bunk cell with someone who has the cell that smell lik e shit."Dkt. # 118, Exh. A-B.

A N A L Y S IS

P la in tiff was transferred to Shawangunk Correctional F a c ility on April 6, 2000. Dkt. # 118, ¶ 74.

M o tio n to Compel

I n support of this motion for summary judgment, Dr. L a s k o w s k i and Dr. Takos opine that

P la in tiff moves to compel production of the following d o c u m e n ts :

T h e plaintiff, at all times, was given appropriate and proper tr e a tm e n t, outside diagnostic consults (i.e., Gl specialist), n u m e r o u s blood tests, numerous x-rays, including EGD's, an u p p e r Gl and a barium enema. Plaintiff was eventually d ia g n o s e d as having a hiatal hernia and mild reflux e s o p h a g itis . The treatment he had been receiving all along w a s the same treatment recommended by the Gl specialist. A ll recommendations given by the Gl specialist were fo llo w e d by the medical staff at [Attica]. The plaintiff was d ia g n o s e d and treated appropriately, however, he often was n o n c o m p lia n t with medication protocol which would help h is condition. The plaintiff was either unable or unwilling to u n d e r s ta n d that this is a chronic condition that will have to [ b e ] dealt with on a symptomatic basis through diet, m e d ic a tio n and lifestyle changes.

( 1 ) Produce the amount of prisoner[s] Dr. Shah ever e x a m in e d at Southport on or about August of 1998 to [M]ay o f 2001.

( 2 ) Any logs, list, or other document reflecting grievance[s] file d by Southport Correctional Facility inmates from August o f 1998 to May of 2001.

( 3 ) Produce any and all written statements logged in any lo g b o o k [ s ] concerning Plaintiff's transfer from B-W e s t to C -W e s t behind plexi-glass from on or about January 1, 1999 to January 20, 1999 the day of plaintiff [sic] transfer.

* 7 (4) Produce any and all documents created by any Attica s ta ff member concerning plaintiff's transfer from B-W e s t to © 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s .

Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2004 W L 1125177 (W .D .N .Y .) ( C ite as: 2004 W L 1125177 (W . D . N . Y . ) )

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C -W e s t behind plexi-glass without a misbehavior report fr o m on or about January 1, 1999 to January 20, 1999.

D k t. # 94, Exh. 1.

W ith respect to the first demand, defendants argue that it w o u ld be impossible for them to determine the number of in m a te s Dr. Shah examined during this period without r e v ie w in g the medical records of every inmate housed at A ttic a during that time period and, in any event, this in fo r m a tio n is not relevant to the question of whether p la i n t iff was denied adequate medical treatment at Attica. D k t. # 100, ¶¶ 12-13. Plaintiff responds that this information is "relevant to show a pattern of mistreatment and neglect of h o w care free Dr. Shah is towards inmates."The Court agrees w ith defendants that the medical care provided by Dr. Shah to other inmates is irrelevant to a determination of the quality o f care afforded plaintiff.

b e c a u s e the corrections officers could no longer stand the o d o r coming from plaintiff's cell. Dkt. # 93. Even if that w e r e true, defendants argue that it would not demonstrate d e lib e r a te indifference on the part of defendants. Dkt. # 100, ¶ 18. In any event, defendants note that they provided p la in tiff with copies of the log book entries concerning this tr a n s fe r . Dkt. # 100, ¶ 19. Inasmuch as the Court will credit p la in tiff's allegation of body odor for purposes of defendant's m o ti o n for summary judgment, there is no need to compel a n y additional information regarding the reason for plaintiff's tr a n s fe r prior to deciding the motion for summary judgment. A c c o r d in g ly, plaintiff's motion to compel discovery is d e n ie d .

M o tio n for Summary Judgment

D e fe n d a n ts argue that plaintiff's allegations fail to rise to the le v e l of a serious medical need or to demonstrate deliberate in d iffe r e n c e by any of the defendants. Dkt. # 104.

W ith respect to the second demand, defendants argue that p la in tiff's demand is over broad and oppressive inasmuch as it seeks grievances relating to issues other than medical care a n d , to the extent it seeks grievances with respect to medical c a r e , seeks information of a confidential nature with respect to other inmates. Dkt. # 100, ¶¶ 15-16. Plaintiff argues that th is is necessary to establish that inmates are forced to file g r ie v a n c e s to get the medical care they need. Dkt. # 93. This r e q u e s t is not relevant to the question of whether plaintiff r e c e iv e d adequate medical care at Attica, which is the q u e s tio n before the Court on defendants' motion for s u m m a r y judgment. Accordingly, plaintiff does not require a c c e s s to this information prior to consideration of d e fe n d a n ts ' motion for summary judgment.

D e f e n d a n ts object to the third and fourth requests on the g r o u n d that plaintiff's transfer from one cell to a cell with a p le x ig la s s shield has nothing to do with plaintiff's allegations o f inadequate medical care. Dkt. # 100, ¶¶ 17-18. Plaintiff a l l e g e s that he was placed in a cell with a plexiglass shield

* 8 Plaintiff responds that there is a question of fact whether d e fe n d a n ts ' delay of "approximately two and a half months to begin any diagnostic test on plaintiff" despite his c o m p la in ts that defendants "continuous offerings of maalox, s im e th e c o n e and zantac" were not relieving his symptoms, c o n s titu te s deliberate indifference to his serious medical n e e d s . Dkt. # 124. Following receipt of the blood test in d ic a tin g positive H-Pylori in November of 1998, plaintiff a r g u e s that defendants concealed the results from plaintiff a n d "did not treat the infection at all."Dkt. # 124. "In total," p la in tiff claims that he "was allowed to suffer for four and a h a lf months and sustain needless pain and organ damage to th e pancreas" as a result of the defendants' deliberate in d iffe r e n c e . Dkt. # 124. Plaintiff argues that "H-Pylori c a u s e s various types of ulcers and, if left untreated, p e r fo r a tio n s develop in the stomach wall. It is in this manner th a t the bacteria (as well as stomach acids and other toxins) e s c a p e out of the stomach and infiltrate other areas of the b o d y ." D k t. # 124.

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Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2004 W L 1125177 (W .D .N .Y .) ( C ite as: 2004 W L 1125177 (W . D . N . Y . ) )

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S u m m a r y Judgment

Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995).

S u m m a r y judgment is appropriate "if the pleadings, d e p o s itio n s , answers to interrogatories, and admissions on file , together with the affidavits, if any, show that there is no g e n u in e issue as to any material fact and that the moving p a r ty is entitled to judgment as a matter of law."Fed.R.Civ.P. 5 6 ( c ) ." I n reaching this determination, the court must assess w h e th e r there are any material factual issues to be tried while r e s o lv in g ambiguities and drawing reasonable inferences a g a in s t the moving party, and must give extra latitude to a p r o se plaintiff." Thomas v. Irvin, 981 F.Supp. 794, 799 ( W .D .N .Y .1 9 9 7 ) (internal citations omitted).

A fact is "material" only if it has some effect on the outcome o f the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 2 4 8 , 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Catanzaro v . Weiden, 140 F.3d 91, 93 (2d Cir.1998). A dispute r e g a r d in g a material fact is genuine "if the evidence is such th a t a reasonable jury could return a verdict for the n o n m o v in g party." Anderson, 477 U.S. at 248;see Bryant v. M a ffu c c i, 923 F.2d 979 (2d Cir.), cert. denied, 502 U.S. 849, 1 1 2 S.Ct. 152, 116 L.Ed.2d 117 (1991).

* 9 Pursuant to Fed.R.Civ.P. 56(e), affidavits in support of or in opposition to a motion for summary judgment "shall be m a d e on personal knowledge, shall set forth such facts as w o u ld be admissible in evidence, and shall show a f f i r m a tiv e ly that the affiant is competent to testify to the m a tte r s stated therein."Thus, affidavits "must be admissible th e m s e lv e s or must contain evidence that will be presented in an admissible form at trial." Santos v. Murdock, 243 F.3d 6 8 1 , 683 (2d Cir.2001), citing Celotex Corp. v. Catrett, 477 U .S . 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see a ls o H.Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55 ( 2 d Cir.1991) (hearsay testimony that would not be a d m is s ib le if testified to at trial may not properly be set forth in an affidavit)._____

D e lib e r a te Indifference to Serious Medical Needs

O n c e the moving party has met its burden of "demonstrating th e absence of a genuine issue of material fact, the n o n m o v in g party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not b e defeated merely upon a `metaphysical doubt' concerning th e facts, or on the basis of conjecture or surmise." Bryant, 9 2 3 F.2d at 982. A party seeking to defeat a motion for s u m m a r y judgment

I n Estelle v. Gamble, the Supreme Court of the United States d e te r m in e d that "deliberate indifference to serious medical n e e d s of prisoners constitutes the `unnecessary and wanton in flic tio n of pain' proscribed by the Eighth Amendment" to th e United States Constitution. 429 U.S. 97, 104, 97 S.Ct. 2 8 5 , 50 L.Ed.2d 251 (1976). To establish such a claim, the p r is o n e r must demonstrate both that the alleged deprivation is , in objective terms, "sufficiently serious," and that, s u b j e c tiv e ly , the defendant is acting with a "sufficiently c u lp a b le state of mind." Hathaway v. Coughlin, 37 F.3d 63, 6 6 (2d Cir.1994).

m u s t do more than make broad factual allegations and in v o k e the appropriate statute. The [party] must also show, b y affidavits or as otherwise provided in Rule 56 of the F e d e r a l Rules of Civil Procedure, that there are specific fa c tu a l issues that can only be resolved at trial.

I n assessing whether a medical condition is "sufficiently s e r io u s ," the Court considers all relevant facts and c ir c u m s ta n c e s , including whether a reasonable doctor or p a tie n t would consider the injury worthy of treatment; the im p a c t of the ailment upon an individual's daily activities; a n d the severity and persistence of pain. See Chance v. A r m s tr o n g , 143 F.3d 698, 702 (2d Cir.1998). A serious m e d ic a l condition exists where the failure to treat a

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Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2004 W L 1125177 (W .D .N .Y .) ( C ite as: 2004 W L 1125177 (W . D . N . Y . ) )

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p r is o n e r 's condition could result in further significant injury o r the unnecessary and wanton infliction of pain. Id.

c o n s titu te s medical malpractice, does not, without more, e n g e n d e r a constitutional claim.

" W h e n the basis for a prisoner's Eighth Amendment claim is a temporary delay or interruption in the provision of o th e r w is e adequate medical treatment, it is appropriate to fo c u s on the challenged delay or interruption in treatment r a th e r than the prisoner's underlying medical condition alone in analyzing whether the alleged deprivation is, in `objective te r m s , sufficiently serious,' to support an Eighth Amendment c la im ." Smith v. Carpenter, 316 F.3d 178, 185 (2d C ir .2 0 0 3 ) , quoting Chance, 143 F.3d at 702. Moreover, a lth o u g h an Eighth Amendment violation may be based upon e x p o s u r e to an unreasonable risk of future harm, "the a b s e n c e of present physical injury will often be probative in a s s e s s in g the risk of future harm." Smith, 316 F.3d at 188. " [ I ] n most cases, the actual medical consequences that flow fr o m the alleged denial of care will be highly relevant to the q u e s tio n of whether the denial of treatment subjected the p r is o n e r to a significant risk of serious harm." Id. at 187.

Chance, 143 F.3d at 703.

A t the outset, the Court notes that there is a question of fact a s to when the presence of H-Pylori bacteria should have in itia lly been detected. Although NP Dougherty avers that th e results of plaintiff's November 20, 1998 blood test were n e g a tiv e , the blood test report indicates a reference range of 6 8 .8 , with anything greater than 25 constituting a positive r e s u lt. Dkt. # 114, Exh. A, p. 126. However, even assuming th a t plaintiff should have been treated for the presence of H -P y lo r i bacteria following his blood test on November 20, 1 9 9 8 , the two month delay in providing such treatment until J a n u a r y 17, 1999 may constitute negligence, but it does not r is e to the level of a constitutional violation.

* 1 0 W ith respect to the defendant's state of mind, it is clear th a t "a prison official does not act in a deliberately in d iffe r e n t manner unless that official `knows of and d is r e g a r d s an excessive risk to inmate health or safety; the o ffic ia l must both be aware of facts from which the inference c o u ld be drawn that a substantial risk of serious harm exists, a n d he must also draw the inference." ' Hathway, 37 F.3d at 6 6 ,q u o tin g Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1 9 7 0 , 128 L.Ed.2d 811 (1994). "Deliberate indifference r e q u ir e s more than negligence, but less than conduct u n d e r ta k e n for the very purpose of causing harm." H a th a w a y , 37 F.3d at 66,citing Farmer, 511 U.S. at 835. A c c o r d in g l y,

P la in tiff's complaints of abdominal pain, vomiting, h e a r tb u r n , constipation, body odor and extreme body heat d id not constitute a serious medical need. Even if they did, d e fe n d a n ts were not deliberately indifferent to these c o m p la in ts . Plaintiff was examined frequently and found to b e in no acute distress. He underwent blood tests and was g iv e n a variety of medications to relieve his complaints. W h e n these medications failed to provide relief, plaintiff was r e fe r r e d to a gastroenterologist and underwent additional b lo o d tests, x-rays, and a lower and upper endoscopy, a b a r iu m enema and upper Gl series.

I t is well-established that mere disagreement over the proper tr e a tm e n t does not create a constitutional claim. So long as th e treatment given is adequate, the fact that a prisoner might p r e fe r a different treatment does not give rise to an Eighth A m e n d m e n t violation. Moreover, negligence, even if it

A s a result, plaintiff was diagnosed with chronic dyspepsia, a small hiatal hernia, and mild reflux esophagitis. The r e c o m m e n d e d treatment for these diagnoses was indefinite c o n tin u a tio n of Prilosec or Prevacid and a mild a n tid e p r e s s a n t, which plaintiff refused to take. Nothing in the r e c o r d before the Court suggests that plaintiff's chronic m e d ic a l needs rose to the level of a serious medical need or th a t defendants exhibited deliberate indifference to those c h r o n ic medical needs. See Obispo v. Alves, 1999 W L

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Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2004 W L 1125177 (W .D .N .Y .) ( C ite as: 2004 W L 1125177 (W . D . N . Y . ) )

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1 3 9 0 2 4 8 (W .D .N .Y . Aug.23, 1999); Demata v. Greifinger, 1 9 9 9 W L 47241, at *3 (S.D.N.Y. Feb.3, 1999); Felipe v. N e w York State Dep't of Correctional Servs., 1998 W L 1 7 8 8 0 2 (N.D.N.Y. April 10, 1998). Accordingly, defendants' m o tio n for summary judgment is granted. FN1

F N 1 . In light of this determination, defendants' a lte r n a tiv e arguments need not be addressed. See D k t. # 104.

C O N C L U S IO N

* 1 1 For the foregoing reasons, plaintiff's motion to compel p r o d u c tio n of documents (Dkt.# 92), is DENIED, and d e fe n d a n ts ' motion for summary judgment (Dkt.# 103), is G R A N T E D . The Clerk of the Court is directed to enter judgment in favor of defendants. ___________________________

T h e Court hereby certifies, pursuant to 28 U.S.C. § 1 9 1 5 ( a ) ( 3 ) , that any appeal from this Order would not be t a k e n in good faith, and leave to appeal to the Court of A p p e a ls as a poor person is denied. Coppedge v. United S ta te s , 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). F u r th e r requests to proceed on appeal as a poor person s h o u ld be directed, on motion, to the United States Court of A p p e a ls for the Second Circuit, in accordance with Rule 24 o f the Federal Rules of Appellate Procedure.

S O ORDERED.

W .D .N .Y .,2 0 0 4 . R o s s v. McGinnis N o t Reported in F.Supp.2d, 2004 W L 1125177 (W .D .N .Y .)

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