DeMeo v. Koenigsmann et al
OPINION AND ORDER re: 91 MOTION for Summary Judgment (Defendants' Notice of Motion for Summary Judgment), filed by Carl J. Koenigsmann, MD, Mervat Makram, Timothy Whalen. Plaintiff has failed to offer evidence sufficient to give rise to a genuine issue of material fact with respect to his deliberate indifference claim. First, he has failed to offer evidence sufficient to support a finding that Drs. Koenigsmann and Whalen were personally involved in requesting, delaying or approving the MRI. Second, plaintiff has failed to offer evidence sufficient to support a finding that his medical needs were sufficiently serious and, therefore, plaintiff cannot satisfy the objective prong of his claim. Third, he has failed to of fer evidence sufficient to support a finding that Dr. Makram acted with a culpable state of mind and, thus, plaintiff cannot satisfy the subjective prong of his claim, either. For the foregoing reasons, defendants' motion for summary jud gment is granted and the complaint is dismissed. The Clerk of the Court is respectfully requested to mark this matter closed, and as further set forth herein. (Signed by Magistrate Judge Henry B. Pitman on 7/7/2017) Copies Mailed By Chambers. (ras)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FRANK A. DeMEO,
11 Civ. 7099
CARL J. KOENIGSMANN, MD, Deputy
Commissioner, Chief Medical
Officer, N.Y.S. Department
of Correction and Community
Supervision, in an official
capacity, et al.,
PITMAN, United States Magistrate Judge:
Plaintiff Frank A. DeMeo, a former inmate in the
custody of the New York State Department of Correction
Community Supervision ("DOCCS"), proceeding prose, co
this action against defendants Ors. Carl J. Koenigsman , Timothy
Whalen, Mervat Makram,
Jonathan Holder and Frank Lance lotti,
pursuant to 42 U.S.C. § 1983, alleging that defendants
deliberately indifferent to injuries to his right shou
biceps muscle that were sustained during his incarcera
Woodbourne Correctional Facility ("Woodbourne").
asserts state law claims for medical malpractice and n
Plaintiff seeks damages, as well
tory and injunctive relief.
By notice of motion dated
28, 2016, Ors. Koenigsmann, Whalen and Makram move for
judgment (Notice of Motion, dated Jan. 28, 2016 (Docke
The parties have consented to my exercising
jurisdiction over this matter pursuant to 28 U.S.C.
For the reasons set forth below, defendants' motion fo
judgment is granted and the complaint is dismissed.
Plaintiff had been in DOCCS custody since 19
ration of Steven N. Schulman, Esq., dated Jan. 28, 201
(Decla(D. I. 96)
("Schulman Deel."), Ex. D, at 13:17-13:23).
Woodbourne in June 2007
(Schulman Deel., Ex. D, at 15: -15:9)
Plaintiff had surgery on his shoulders bef or
alleged events that give rise to this action.
was performed on his left shoulder to repair a torn ro
(Schulman Deel., Ex. D, at 12:5-12:9).
In 2005, a cys
surgically removed from plaintiff's right shoulder (Sc
Deel., Ex. D, at 12:5-12:11).
In 2007, plaintiff's ri
cuff was surgically repaired (Schulman Deel., Ex. D, a
As a result of the 2003 and 2007 surgeries, p aintiff
has metallic screws in both shoulders
(Schulman Deel., Ex. D, at
Ex. F, at MED068-70).
On October 13, 2010, plaintiff was working
in Woodbourne's gym, storing dumbbells on their racks, w~en he
"felt something pop" in his right arm (Schulman Deel. , Ejx. D, at
Prior to that injury, plaintiff had not~cbd a
"clicking" in his right arm for weeks and "felt that sd~ething
was going to happen"
(Schulman Deel. , Ex. D, at 2 5: 2 3-4 61: 4) .
Plaintiff immediately reported his injury to : aiI correc:
tion officer, who called the infirmary (Schulman
The infirmary said that plaintiff's injl,U.r!y did not
warrant an emergency sick call (Schulman Deel., Ex. D, •,a!t 19:2119: 25) .
After waiting a day or two to see how he
signed up for regular sick call due to discomfort and
cant loss of strength in his right arm and shoulder (sdhulman
Deel., Ex. D, at 24:22-25:1).
Plaintiff was seen by a nurse at regular sick ;call on
October 18, 2010; by that date, plaintiff's arm had turned black
and blue (Schulman Deel., Ex. D, at 22:5-22:9, 25:2; Declaration
of Dr. Mervat Makram, dated Jan. 14, 2016
Deel."), Ex. A, at MED136).
After noting a bruise on plaintiff's
biceps and an "obvious deformity," the nurse referred plaintiff
to a physician's assistant, Genevieve Switz, who saw plaintiff
the same day (Schulman Deel., Ex. D, at 25:2-25:4; Makram Deel.
7 & Ex. A, at MED136).
Switz also noted a bruise on the biceps,
but reported that plaintiff had "no pain" and "no loss of
(Makram Deel., Ex. A, at MED136).
plaintiff with a "possible rupture of the proximal biceps tendon,"
a rupture at the shoulder end of the biceps
Ex. A, at MED136).
Switz requested a referral for
magnetic resonance imaging ("MRI"), directed plaintiff to wear a
sling until the MRI report was available and restricted plaintiff's activities
(Makram Deel., Ex. A, at MED136).
wore the sling for approximately one week (Schulman Deel., Ex. D,
An x-ray was also taken that same day (Schulman Deel.,
Ex. D, at 29:10-30:13).
A report dated October 21, 2010 and
reviewed by Dr. Makram on October 26, 2010 did not disclose a
ruptured biceps or torn rotator cuff based on the x-ray (Makram
8 & Ex. B, at MED068).
However, according to Dr. Makram,
the lack of such findings was inconclusive because an MRI is more
effective than an x-ray in revealing soft tissue injuries (Makram
Deel. lJl 8) .
Approval for the MRI required analysis under DOCCS's
"utilization review process" for specialist referrals
Deel., Ex. H; Makram Deel. lJl 9).
Switz and Dr. Lancellotti,
plaintiff's primary care physician, initiated the utilization
review process the same day that Switz saw plaintiff by electronically entering a request into DOCCS's computer system with an
urgency level of "soon"; this designation meant that the MRI
should be provided within two weeks
(Makram Deel. lJl 10 & Ex. B,
Switz also noted that there were metal fragments in
plaintiff's left shoulder (Makram Deel. lJl 11 & Ex. B, at MED069)
DOCCS's contracted utilization reviewer, APS,
request that same day and determined to def er the decision
pending more information (Makram Deel. lJl 12 & Ex. B, at MED1822)
Specifically, APS wanted to know whether any weakness or instability was noted on physical examination (Makram Deel. lJl 12 & Ex.
The record does not disclose APS's formal name.
B , at MED 18 2 2 ) .
On October 21, 201G, Dr. Lancellotti informed
APS that plaintiff had "bulging of biceps toward elbow on flexion; decreased motor ability to flex @ elbow; weakness of muscledistal [sic] to shoulder; large hematoma on flexor side of
(Makram Deel. err 13
Ex. B, at MED1822).
this information, on October 22, 2010, APS approved the MRI on a
"soon" basis (Makram Deel. err 13
Ex. B, at MED1822).
The first radiologist contacted to conduct the MRI
refused to do so because of the metal screws in plaintiff's
shoulders; according to Dr. Makram, metallic objects in the body
require special safety precautions and could adversely affect the
images produced by the MRI
(Makram Deel. err 16).
Makram spent several days trying to find a radiologist willing to
conduct the MRI at a location suitable for a medium security
inmate (Makram Deel. err 16).
Albany Medical Center agreed to
perform the MRI, which took place on November 15, 2010
Deel., Ex. D, at 36:20-36:21; Makram Deel. errerr 16, 18).
Dr. Makram's only role concerning the MRI was finding a
radiologist willing to perform it (Makram Deel. err 17).
point did Dr. Makram disapprove the MRI, nor was she involved in
APS's request for more information (Makram Deel. err 17) . 2
Plaintiff testified at his deposition that he believed Dr.
(continued ... )
Dr. Whalen was not involved in approving the MRI
As Regional Medical Director, Dr. Whalen
would not have been involved in the utilization review process
unless APS preliminarily denied the request for an MRI, which did
not occur here
(Schulman Deel., Ex. H
III.A.4; Makram Deel.
15) . 3
( • • • continued)
Makram delayed his MRI (Schulman Deel., Ex. D, at 35:11-35:13).
Plaintiff's belief was based on a conversation with Dr.
Lancellotti, in which Dr. Lancellotti allegedly said that "every
time he put something in regarding procedures or surgeries, that
Dr. Makram [was] overriding his request" (Schulman Deel., Ex. D,
However, while such a statement would be an
admission if offered against Dr. Lancellotti, it is inadmissible
hearsay as to the other defendants.
Realuvo v. Diaz, 98 Civ.
7684 (GBD), 2006 WL 695683 at *5 (S.D.N.Y. Mar. 17, 2006)
(Daniels, D. J.) (statement of one defendant not admissible
against other defendant); Mueller v. County of Westchester, 943
F. Supp. 357, 359 n.2 (S.D.N.Y. 1996) (Rakoff, D.J.) (same),
aff'd, 122 F.3d 1056 (2d Cir. 1997) (summary order); see O'Neal
v. Esty, 637 F.2d 846, 850-51 (2d Cir. 1980) (out-of-court
statement is not hearsay when offered against the party who made
Hearsay statements are inadmissible on a motion
for summary judgment and cannot create a genuine issue of fact.
ITC Ltd. v. Punchgini, Inc., 482 F. 3d 135, 151 (2d Cir. 2007);
Capobianco v. City of New York, 422 F.3d 47, 55 (2d Cir. 2005);
Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004);
ABB Indus. Sys., Inc. v. Prime Tech., Inc., 120 F.3d 351, 357 (2d
Cir. 1997); Hamad v. Cook, 13 Civ. 3222 (MHD), 2014 WL 3507340 at
*4 (S.D.N.Y. June 30, 2014) (Dolinger, M.J.).
Although plaintiff testified that it was his "understanding" that Dr. Whalen disapproved the request for an MRI (Schulman
Deel., Ex. D, at 65:19-66:1), based on comments by Dr. Lancellotti (Schulman Deel., Ex. D, at 33:5-33:25), such comments by Dr.
Lancellotti are hearsay as to the remaining defendants and,
There is no evidence in the record indicating that Dr.
Koenigsmann was involved in the approval of plaintiff's MRI.
Chief Medical Officer, Dr. Koenigsmann would not have ordinarily
been involved in the approval of an injury-related MRI
Deel. err 15).
The MRI report, dated November 22, 2010, arrived at
Woodbourne on November 29, 2010; Dr. Makram reviewed it on
December 1, 2010 (Makram Deel. err 18 & Ex. B, at MED1191).
report stated that plaintiff had a "full thickness retracted
proximal biceps tendon rupture" with an approximately eightcentimeter distal retraction of the biceps tendon,
amount of surrounding fluid" and no evidence of muscle atrophy
(Makram Deel., Ex. B, at MED1191).
It also stated that plaintiff
had a "full thickness re-tear of the supraspinatus tendon" 4
(Makram Deel., Ex. B, at MED1191).
Dr. Makram referred the
report to Dr. Lancellotti (Makram Deel. err 18).
Plaintiff met with Dr. Lancellotti on December 2, 2010
(Schulman Deel., Ex. D, at 42:7-42:14; Makram Deel., Ex. B, at
Dr. Lancellotti informed plaintiff of the MRI results
The supraspinatus tendon "links the supraspinatus muscle to
the shoulder joint, allowing the muscle to perform its primary
function of lifting the arm away from the side of the body and is
one of four tendons that make up the rotator cuff." Smith v.
Colvin, No. 12-CV-5573, 2013 WL 4519782 at *8 n.41 (E.D.N.Y. Aug.
26, 2013) (internal quotation marks omitted).
and requested a referral for plaintiff to see Dr. Holder, an
orthopedic specialist, on a "soon" basis (Schulman Deel., Ex. D,
Ex. F, at MED090).
Plaintiff saw Dr. Holder on December 9, 2010, at which
time Dr. Holder reviewed the MRI images
(Schulman Deel., Ex. D,
at 40:23-41:17, 44:20-44:22; Makram Deel., Ex. B, at MED090).
Dr. Holder reported that an examination of plaintiff's right
shoulder indicated that plaintiff had a full range of motion with
no restrictions, "no impingement or O'Brien's," 5 no weakness on
abduction or flexing and "[positive] Biceps Belly deformity" 6
(Makram Deel., Ex. B, at MED090).
He also noted that there was
"[n]o clinical Rot[ator] Cuff tear-determined [and that no]
orthopedic intervention [was warranted] at [that] time"
Deel., Ex. B, at MED090)
Dr. Holder opined that the MRI
"reveal[ed] long head Biceps rupture -- supraspinatus tear," and
he opined that plaintiff's right biceps was "rupture-chronic
not surgically amenable for repair at this time"
The O'Brien's test "is a test for injury to the
supraspinatus muscle or superior labrum of the shoulder joint."
Dettmer v. Astrue, No. 4:10-CV-1329 (CEJ), 2011 WL 3904429 at *5
n. 1 7 ( E. D. Mo. Sept. 6, 2011) .
The belly is "the fleshy contractile part of a muscle."
Dorland's Illustrated Medical Dictionary 208 (32nd ed. 2012).
Ex. B, at MED090) . 7
Dr. Lancellotti reviewed Dr. Holder's find-
ings with plaintiff on December 23, 2010
(Schulman Deel., Ex. D,
at 53:9-53:20; Makram Deel., Ex. A, at MED132).
Return to Activities
On December 31, 2010, plaintiff requested that medical
restrictions that had been in place be lifted and that he be
allowed to return to work (Schulman Deel., Ex. D, at 56:23-57:6;
Makram Deel., Ex. B, at MED115).
Dr. Lancellotti cleared plain-
tiff for "full duty" as a porter (Schulman Deel., Ex. D, at
57:19-58:12 & Ex. F, at MED103), although plaintiff testified
that he did not "really perform any weight room activities or
porter work" because "there's other porters there 
[a] nd [his]
boss at that time, he gave [plaintiff] a lot of leeway"
Deel., Ex. D, at 58:13-58:22).
Plaintiff ultimately resumed lifting weights because
his pain had ceased and he had a full range of motion (Schulman
Deel., Ex. D, at 59:2-59:9).
He continued this activity until
According to plaintiff, Dr. Holder also allegedly said that
plaintiff "should have been brought to him a little faster
because bicep injuries have to be done within weeks [of the
injury]" (Schulman Deel., Ex. D, at 47:13-47:16).
such a statement would be an admission by Dr. Holder, it is
hearsay as to the other defendants.
See footnote 2, supra.
November 29, 2011, when he was disciplined for fighting
Deel., Ex. D, at 59:10-60:7).
By late 2011, plaintiff had a second MRI, which revealed a torn right rotator cuff (Schulman Deel., Ex. D, at
This tear was surgically repaired in June 2012,
when plaintiff was in the Clinton Correctional Facility (Schulman
Deel., Ex. D, at 61:22-62:1).
Plaintiff never had surgery on his
biceps (Schulman Deel., Ex. D, at 12:7).
Relevant Procedural History
Plaintiff commenced this action pro se on October 3,
2011 (Complaint, dated Oct. 3, 2011
claims against Ors. Koenigsmann, Whalen and Makram in their
individual and official capacities and against Ors. Holder and
Lancellotti in their individual capacities.
(1) were deliberately indifferent to his right
biceps and shoulder injuries by delaying the diagnosis and
treatment of his injuries;
(2) were deliberately indifferent by
denying a request to seek a second medical opinion and a second
(3) were negligent and (4)
committed medical malpractice
(First Amended Complaint, dated May 15, 2012
Compl. ") '-1!'-ll 1, 15-83).
Plaintiff also alleged that Dr.
Koenigsmann was liable under a theory of respondeat superior (Am.
Plaintiff sought three million dollars in
compensatory damages for physical and emotional injury, a declaratory judgment that defendants violated his Eighth Amendment
rights and an injunction ordering defendants "to carry out
without delay adequate medical care of Plaintiff[']s injuries and
to not impede in any manner Plaintiff[']s physicians[') provision
of adequate medical care"
(Am. Compl., at 20).
On June 2, 2014, defendants moved to dismiss plaintiff's claims against them (Notice of Motion, dated June 2, 2014
I issued an Opinion and Order on March 20, 2015
granting the motion in part and denying it in part.
cally, I dismissed all claims against Ors. Lancellotti and Holder
(Opinion and Order, dated Mar. 20, 2015
Order"), at 53).
I also dismissed all claims against Ors.
Koenigsmann, Whalen and Makram in their official capacities
(Opinion and Order, at 27).
I dismissed all of
plaintiff's claims concerning his allegation that defendants were
deliberately indifferent in delaying a referral for a second
opinion and second MRI after Dr. Holder's December 9, 2010
evaluation (Opinion and Order, at 37-39).
I also dismissed
plaintiff's state law claims and claims based on the doctrine of
respondeat superior (Opinion and Order, at 53).
concluded that plaintiff plausibly alleged an Eighth Amendment
claim against Ors. Koenigsmann, Whalen and Makram in their
individual capacities with respect to whether they were deliberately indifferent and thereby unduly delayed plaintiff's MRI and
the referral to Dr. Holder (Opinion and Order, at 27-36).
On August 31, 2016, Ors. Koenigsmann, Whalen and Makram
filed the present motion seeking summary judgment with respect to
the remaining claims against them (Notice of Motion, dated Jan.
28, 2016 (D.I.
Plaintiff submitted his opposition to my
chambers by letter dated December 28, 2016.
Summary Judgment Standards
The standards applicable to a motion for summary
judgment are well-settled and require only brief review.
Summary judgment may be granted only where there is no
genuine issue as to any material fact and the moving
. is entitled to a judgment as a matter of
In ruling on a motion for
opposition will be docketed contemporaneously
with the docketing of this Opinion and Order.
The opposition references letters by plaintiff dated July
25, 2016 and September 12, 2016.
These letters do not appear on
the Court's ECF system, nor are they contained in my files for
summary judgment, a court must resolve all ambiguities
and draw all factual inferences in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986).
To grant the motion, the court must determine that
there is no genuine issue of material fact to be tried.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.
Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine factual
issue derives from the "evidence [being] such that a
reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct. 2505.
The nonmoving party cannot defeat summary judgment by
"simply show[ing] that there is some metaphysical doubt
as to the material facts," Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct.
1348, 89 L.Ed.2d 538 (1986), or by a factual argument
based on "conjecture or surmise," Bryant v. Maffucci,
923 F.2d 979, 982 (2d Cir. 1991).
The Supreme Court
teaches that "all that is required [from a nonmoving
party] is that sufficient evidence supporting the
claimed factual dispute be shown to require a jury or
judge to resolve the parties' differing versions of the
truth at trial." First Nat'l Bank of Ariz. v. Cities
Serv. Co., 391 U.S. 253, 288-89, 88 S. Ct. 1575, 20
L.Ed.2d 569 (1968); see also Hunt v. Cromartie, 526
U.S. 541, 552, 119 S. Ct. 1545, 143 L.Ed.2d 731 (1999)
It is a settled rule that "[c]redibility assessments,
choices between conflicting versions of the events, and
the weighing of evidence are matters for the jury, not
for the court on a motion for summary judgment."
Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997).
McClellan v. Smith, 439 F.3d 137, 144
(2d Cir. 2006)
original); accord Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150-51 (2000)
Estate of Gustafson ex rel. Reginella
Although the Court in Reeves was reviewing the denial of a
motion for judgment as a matter of law pursuant to Fed.R.Civ.P.
50, the same standards apply to a motion for summary judgment
pursuant to Fed.R.Civ.P. 56.
Reeves v. Sanderson Plumbing
Prods., Inc., supra, 530 U.S. at 150-51.
v. Target Corp., 819 F.3d 673,
675 (2d Cir. 2016); Cortes v. MTA
N.Y.C. Transit, 802 F.3d 226, 230
(2d Cir. 2015); Deep Woods
Holdings, L.L.C. v. Savings Deposit Ins. Fund of Republic of
Turk., 745 F.3d 619, 622-23
(2d Cir. 2014); Hill v. Curcione, 657
F.3d 116, 124 (2d Cir. 2011)
"Material facts are those which 'might affect the
outcome of the suit under the governing law'
Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir. 2007), quoting
Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248.
ruling on a motion for summary judgment, a judge must ask himself
not whether he thinks the evidence unmistakably favors one side
or the other but whether a fair-minded jury could return a
verdict for the [non-movant] on the evidence presented[.]'"
SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 788
(2d Cir. 2007)
(second alteration in original), quoting Readco, Inc. v. Marine
Midland Bank, 81 F.3d 295, 298
(2d Cir. 1996).
Entry of summary judgment is appropriate "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, supra, 477 U.S. at 322.
"In such a
situation, there can be 'no genuine issue as to any material
since a complete failure of proof concerning an essential
element of the nonmoving party's case necessarily renders all
other facts immaterial."
Celotex Corp. v. Catrett, supra, 477
U.S. at 322-23, quoting Fed.R.Civ.P. 56.
Lastly, where, as here, a party is proceeding pro se,
his submissions "must be construed liberally and interpreted 'to
raise the strongest arguments that they suggest.'"
Federal Bureau of Prisons, 470 F.3d 471, 474
(2d Cir. 2006)
(emphasis in original), quoting Pabon v. Wright, 459 F.3d
(2d Cir. 2006); see also Haines v. Kerner,
404 U.S. 519,
curiam); Graham v. Henderson, 89 F.3d 75, 79 (2d
Cir. 1996); Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994).
This rule applies with particular force when evaluating motions
for summary judgment.
Cir. 198 8)
Graham v. Lewinski, 848 F.2d 342, 344
(" [ S] pecial solicitude should be afforded pro se
when confronted with motions for summary judg-
ment."), citing Sellers v. M.C. Floor Crafters, Inc., 842 F.2d
(2d Cir. 1988).
Section 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any
. subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured .
In order to establish a claim under Section 1983, a
plaintiff must show that "(1) the conduct complained of must have
been committed by a person acting under color of state law; and
(2) the conduct complained of must have deprived a person of
rights, privileges, or immunities secured by the Constitution or
laws of the United States."
Pitchell v. Callan, 13 F.3d 545, 547
(2d Cir. 1994), citing Parratt v. Taylor, 451 U.S. 527, 535
(1981), overruled on other grounds, Daniel v. Williams, 474 U.S.
(1986); accord Fiedler v. Incandela, 222 F. Supp. 3d 141, 156
(E.D.N.Y. 2016); Guttilla v. City of New York, 14 Civ. 156 (JPO),
2015 WL 437405 at *5 (S.D.N.Y. Feb. 3, 2015)
Davis v. Lynbrook Police Dep't, 224 F. Supp. 2d 463, 475 (E.D.N.Y. 2002).
"' [P]ersonal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under§ 1983. '"
Williams v. Smith, 781 F.2d 319, 323 (2d
Cir. 1986), quoting McKinnon v. Patterson, 568 F.2d 930, 934
Cir. 1977); accord Grullon v. City of New Haven, 720 F.3d 133,
138 (2d Cir. 2013); Lebron v. Mrzyglod, 14 Civ. 10290 (KMK), 2017
WL 365493 at *3 (S.D.N.Y. Jan. 24, 2017)
involvement can be shown by
(1) actual direct participation in the constitutional
violation, ( 2) failure to remedy a wrong after being
informed through a report or appeal, (3) creation of a
policy or custom that sanctioned conduct amounting to a
constitutional violation, or allowing such a policy or
custom to continue, (4) grossly negligent supervision
of subordinates who committed a violation, or (5)
failure to act on information indicating that unconstitutional acts were occurring.
Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir. 2003), citing
Colon v. Coughlin, 58 F.3d 865, 873
(2d Cir. 1995); accord Warren
v. Pataki, 823 F.3d 125, 136 (2d Cir. 2016), cert. denied sub
nom., Brooks v. Pataki, 137 S. Ct. 380 (2016); Guillory v. Cuomo,
616 F. App'x 12, 13 (2d Cir. 2015)
(summary order); Littlejohn v.
City of New York, 795 F.3d 297, 314
Goord, 347 F.3d 431,
(2d Cir. 2015); Richardson v.
435 (2d Cir. 2003)
Fischer, No. 08-CV-3027
(JG) (LB), 2009 WL 689803 at *3 (E.D.N.Y.
Mar. 12, 2009); Benitez v. Locastro, No.
4767439 at *12
(per curiam); Lewis v.
9:04-CV-423, 2008 WL
(N.D.N.Y. Oct. 29, 2008); Johnson v. Wright, 234
F. Supp. 2d 352, 363 (S.D.N.Y. 2002)
second example listed in Colon -- permitting supervisory liability where a 'defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong,' -should not be too broadly construed."); Morris v. Eversley, 205
F. Supp. 2d 234, 241 (S.D.N.Y. 2002)
J.) . 10
(Chin, then D.J., now Cir.
A supervisor cannot be held liable under Section 1983
rn Ashcroft v. Igbal, 556 U.S.
(2009), the Su( continued ... )
under the doctrine of respondeat superior, Monell v. Department
of Soc. Servs.,
436 U.S. 658,
the supervisor is required.
599, 621 n.30
(1978); personal involvement of
Leonhard v. United States, 633 F.2d
(2d Cir. 1980)
The Eighth Amendment of the United States Constitution,
made applicable to the states by the Fourteenth Amendment,
prohibits cruel and unusual punishment.
U.S. 97, 101
Estelle v. Gamble, 429
Under the Eighth and the Fourteenth
Amendments, the states have a limited obligation to provide
medical care to sentenced prisoners.
1955 (LAP), 2017 WL 700744 at *8
Medina v. Buther, 15 Civ.
(S.D.N.Y. Feb. 3, 2017)
D.J.), citing Estelle v. Gamble, supra, 429 U.S. at 103-04.
"' [D]eliberate indifference to [the] serious medical needs of
prisoners constitutes the "unnecessary and wanton infliction of
( • • • continued)
preme Court rejected the argument that "a supervisor's mere
knowledge of his subordinate's discriminatory purpose amounts to
the supervisor's violating the Constitution." Although the
Second Circuit had acknowledged that it was an open issue whether
all of the types of personal involvement outlined above (the
"Colon factors") survive Iqbal, Raspardo v. Carlone, 770 F.3d 97,
117 (2d Cir. 2014), citing Reynolds v. Barrett, 685 F.3d 193,
205-06 n.14 (2d Cir. 2012), it appears that they do, as demonstrated by the recent Second Circuit opinions cited above that
continue to cite the Colon factors.
pain" proscribed by the Eighth Amendment.'"
Washington v. City
of New York, 10 Civ. 389 (LTS) (JLC), 2011 WL 566801 at *2
(S.D.N.Y. Feb. 15, 2011)
(Swain, D.J.), quoting Estelle v.
Gamble, supra, 429 U.S. at 104
(alteration in original; footnote
Not every claim of inadequate medical treatment by a
prisoner rises to the level of a constitutional violation.
Estelle v. Gamble, supra, 429 U.S. at 105.
The failure to
provide medical care to a prisoner will give rise to a constitutional violation only if two elements are established:
The first requirement is objective:
deprivation of adequate medical care must be 'sufficiently serious.'" Salahuddin v. Goord, 467 F.3d 263,
279 (2d Cir. 2006) (quoting Farmer v. Brennan, 511 U.S.
825, 834, 114 S. Ct. 1970, 128 L.E.2d 811 (1994)).
second requirement is subjective:
the charged officials must be subjectively reckless in their denial of
Id. at 280.
This means "that the charged official [must] act or fail to act while actually
aware of a substantial risk that serious inmate harm
will result." Id. (emphasis added) . Officials need
only be aware of the risk of harm, not intend harm.
Id. And awareness may be proven "from the very fact
that the risk was obvious." Farmer, 511 U.S. at 842,
114 S. Ct. 1970.
Spavone v. New York State Dep't of Corr. Servs., 719 F.3d 127,
138 (2d Cir. 2013)
(brackets in original); accord Benitez v.
Parmer, 654 F. App'x 502, 504
(2d Cir. 2016)
Johnson v. Wright, 412 F.3d 398, 403
(2d Cir. 2005).
must establish both the objective and subjective prongs of the
deliberate indifference standard in order to prevail.
v. Curcione, supra,
657 F.3d at 122.
A medical need is sufficiently serious if it is "a
condition of urgency, one that may produce death, degeneration,
or extreme pain."
Johnson v. Wright, supra, 412 F.3d at 403
(internal quotation marks omitted).
Factors considered in
determining the existence of a serious medical condition include
"[t]he existence of an injury that a reasonable doctor
or patient would find important and worthy of comment
or treatment; the presence of a medical condition that
significantly affects an individual's daily activities;
the existence of chronic and substantial pain,"
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998),
or "the absence of adverse medical effects or demonstrable physical injury." Carpenter, 316 F.3d at 187.
Edmonds v. Central N.Y. Psychiatric Ctr., 10 Civ. 5810 (DAB) (KNF) , 2011 WL 3 8 0 9 913 at * 4 ( S. D. N. Y. Aug. 2 5, 2011)
(alterations in original; footnote omitted).
(Batts, D. J. )
"The inquiry [with
respect to the objective element of a deliberate indifference
claim] is 'fact-specific' and 'must be tailored to the specific
circumstances of each case.'"
Thomas v. Westchester County, 12
(CS), 2013 WL 3357171 at *4
(S.D.N.Y. July 3, 2013)
(Seibel, D.J.), quoting Smith v. Carpenter, 316 F.3d 178, 185 (2d
Cir. 2003); see also Hudson v. McMillian, 503 U.S. 1, 8 (1992)
("The objective component of [a deliberate indifference] claim
. contextual" and fact-specific).
Where the plaintiff claims that a medical diagnosis
and/or treatment has been improperly delayed, the inquiry with
respect to the objective element focuses on the sequelae of the
delay rather than the underlying condition itself.
[W]here, as here, a prisoner alleges "a temporary delay
or interruption in the provision of otherwise adequate
medical treatment, it is appropriate to focus on the
challenged delay or interruption in treatment 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 v. Carpenter, 316 F.3d
178, 185 (2d Cir. 2003) (quoting Chance v. Armstrong,
143 F.3d 698, 702 (2d Cir. 1998)) (emphases in original).
Bilal v. White,
494 F. App'x 143, 145 (2d Cir. 2012)
'it's the particular risk of harm
faced by the prisoner due to the challenged deprivation of care,
rather than the severity of the prisoner's underlying medical
condition, considered in the abstract, that is relevant for
Eighth Amendment purposes."'
585 (2d Cir. 2010)
Goris v. Breslin, 402 F. App'x 582,
(summary order), quoting Smith v. Carpenter,
supra, 316 F.3d at 186.
The subjective prong of a Section 1983 claim for
inadequate medical care requires the plaintiff to prove that "the
charged official [acted] with a sufficiently culpable state of
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).
plaintiff must show that "the prison official was aware of, and
consciously disregarded, the prisoner's medical condition."
Hernandez v. Goord, 02 Civ. 1704
(S.D.N.Y. July 28, 2006)
(DAB), 2006 WL 2109432 at *6
(Batts, D.J.), citing Chance v. Armstro-
n.g, supra, 143 F.3d at 703.
"'Deliberate indifference is a
mental state equivalent to subjective recklessness .
mental state requires that the charged official act or fail to
act while actually aware of a substantial risk that serious
inmate harm will result.'"
Nielsen v. Rabin, 746 F.3d 58,
(alteration in original; footnote omitted), quoting
Salahuddin v. Goord, supra,
134 F.3d 104, 108
467 F.3d at 280; Hemmings v. Gorczyk,
(2d Cir. 1998)
"equivalent to criminal recklessness,
[where] the official knows
of and disregards an excessive risk to inmate health or safety"
(internal quotation marks omitted)).
"The reckless official need
not desire to cause such harm or be aware that such harm will
surely or almost certainly result.
Rather, proof of awareness of
a substantial risk of the harm suffices."
Salahuddin v. Goord,
supra, 467 F.3d at 280, citing Farmer v. Brennan, supra, 511 U.S.
at 835, 842.
A constitutional violation requires "more than ordinary
lack of due care for the prisoner's interests or safety."
Whitley v. Albers, 475 U.S. 312, 319 (1986).
An Eighth Amendment
claim does not lie for conduct that is merely negligent.
v. Gamble, supra, 429 U.S. at 106 ("[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."); Matican v. City of New York, 524
F.3d 151, 158
(2d Cir. 2008); Hendricks v. Coughlin,
109, 113 (2d Cir. 1991); Hudak v. Miller, 28 F. Supp. 2d 827, 831
(Sotomayor, then D.J, now J.).
"[i]t is well-established that mere disagreement over the proper
treatment does not create a constitutional claim.
So long as the
treatment given is adequate, the fact that a prisoner might
prefer a different treatment does not give rise to an Eighth
Chance v. Armstrong, supra, 143 F.3d at
703; accord Thompson v. Racette, 519 F. App'x 32, 34
(summary order) .
the Foregoing Principles
Defendants do not address the threshold question of
whether Ors. Koenigsmann, Whalen and Makram were acting under
color of state law.
In any event,
"[p]ublic employees acting in
their official capacity or exercising their responsibilities
pursuant to state law generally are considered to be acting under
color of state law."
Day v. Warren, No. 3:06CV155
(AWT), 2006 WL
3259117 at *2
(D. Conn. Nov. 8, 2006); accord Feingold v. New
York, 366 F.3d 138, 159 (2d Cir. 2004).
I shall proceed to
address the substance of plaintiff's deliberate indifference
As noted above, see Section III.A.2, supra, the personal involvement of a defendant in an alleged constitutional
violation is necessary for Section 1983 liability.
not offered evidence sufficient to give rise to a genuine issue
of fact that either Dr. Koenigsmann or Dr. Whalen was personally
involved in the events at issue.
Plaintiff has failed to offer any evidence that Dr.
Koenigsmann directly participated in requesting the MRI, delaying
it or approving it.
To the contrary, defendants have presented
evidence that as Chief Medical Officer, Dr. Koenigsmann would not
have ordinarily been involved in the approval of an MRI request
resulting from an injury (Makram Deel.
Plaintiff has also
failed to present any evidence of any policy or custom created by
Dr. Koenigsmann which resulted in delays conducting MRis.
There is no evidence that Dr. Koenigsmann either created
or approved the utilization review process.
Plaintiff has failed to offer evidence that Dr. Koenigsmann was
personally involved in any other manner that would be sufficient
to sustain a finding of liability 12 ;
in fact, plaintiff testified
that he first wrote to Dr. Koenigsmann in January 2011
Deel., Ex. D, at 38:15-38:18), which suggests that he did not
even know about any delay in getting an MRI until after plaintiff's appointment with Dr. Holder.
In the absence of some
evidence that Dr. Koenigsmann was personally involved in the
events at issue, he cannot be liable on plaintiff's claim.
There is also no evidence that Dr. Whalen directly
participated in approving the MRI.
As Regional Medical Director,
Dr. Whalen would not have been involved in the utilization review
process until APS preliminarily denied the request for an MRI
(Schulman Deel., Ex. H
III.A.4; Makram Deel.
however, the request for an MRI was never preliminarily denied;
For example, while plaintiff's claim that Dr. Koenigsmann
failed to train and supervise Dr. Whalen was not dismissed
(Opinion and Order, at 53), the claim cannot survive summary
judgment because there is no evidence that Dr. Whalen committed
any constitutional violation, nor is there evidence that Dr.
Koenigsmann failed to train and supervise Dr. Whalen (see Schulman Deel., Ex. D, at 65:14-65:18 (plaintiff testified that he had
no personal knowledge whether Dr. Koenigsmann failed to train or
supervise DOCCS medical staff))
Plaintiff testified that Dr. Koenigsmann should be liable
because he was Dr. Makram's boss (Schulman Deel., Ex. D, at
However, as explained above, see Section III.A.2,
supra, a supervisor cannot be held liable under Section 1983
solely on a theory of respondeat superior.
rather, it was deferred pending receipt of more information
Plaintiff has failed to present evidence
that Dr. Whalen was personally involved in any other way that
would be sufficient to sustain a finding of liability 14 ; plaintiff has not even presented evidence of when Dr. Whalen learned
about the events at issue.
Because plaintiff has failed to create a genuine issue
of material fact whether Dr. Koenigsmann or Dr. Whalen was
personally involved in requesting, delaying or approving the MRI,
they are entitled to summary judgment on plaintiff's deliberate
Unlike Ors. Koenigsmann or Whalen, there is evidence
that Dr. Makram was personally involved in procuring plaintiff's
However, as explained below, because plaintiff has failed
to create a genuine issue of material fact with respect to both
the objective and subjective prongs of his deliberate indifference claim, Dr. Makram is also entitled to summary judgment.
For example, as with Dr. Koenigsmann, there is no evidence
that Dr. Whalen either created or approved the utilization review
Serious Medical Need
Plaintiff has not offered evidence sufficient to give
rise to a genuine issue of fact concerning whether his medical
needs were sufficiently serious to satisfy the objective prong of
his deliberate indifference claim.
The majority of the factors weighed in assessing
whether there was a serious injury, see Section III.A.2.a, supra,
First, plaintiff himself did not complain
about the delay in getting his MRI.
Plaintiff testified that he
had no proof that he asked anyone at DOCCS between October 25 and
the date of the MRI about the delay in scheduling his MRI
(Schulman Deel., Ex. D, at 37:10-37:13).
Second, plaintiff's daily activities were not significantly limited by any delay in treatment.
Plaintiff utilized his
sling for only one week, even though he was supposed to wear it
until the MRI report was completed (Schulman Deel., Ex. D, at
55:12-55:14; Makram Deel., Ex. A, at MED136).
Lancellotti noted on October 21, 2010 that plaintiff had "decreased motor ability to flex @ elbow" and "weakness of muscle distal [sic] to shoulder"
Ex. B, at
MED1822), on December 9, 2010 Dr. Holder noted that plaintiff had
a full range of motion with no restrictions and no weakness on
abduction or flexing
(Makram Deel., Ex. B, at MED090).
plaintiff was restricted from physical activities, plaintiff
requested that those medical restrictions be lifted and that he
be allowed to return to work on December 31, 2010
Deel., Ex. D, at 56:23-57:6), and he was cleared to return for
"full duty" work (Schulman Deel., Ex. D, at 57:19-58:12) . 15
also ultimately resumed lifting weights because his pain had
ceased and he had a full range of motion (Schulman Deel., Ex. D,
at 59:2-59: 9).
Thus, any restrictions on plaintiff's activities
were temporary and resolved without medical intervention.
Third, there is no evidence of chronic and substantial
Although plaintiff claims that he has constant, worsening
pain (Letter from Frank A. DeMeo to the undersigned, dated Dec.
28, 2016, at 1), "subjective complaints of pain are not sufficient to satisfy [the serious medical need] standard."
v. Aycock-West, 164 F. Supp. 3d 502, 512
(alteration in original; internal quotation marks omitted) ;
accord Butler v. Zamilus, 14 Civ. 853
(S.D.N.Y. Sept. 30, 2016)
(KMK), 2016 WL 5720794 at
There is no other
Al though plaintiff testified that he did not "really
perform any weight room activities or porter work," that was
because "there's other porters there [a]nd [his] boss at that
time, he gave [plaintiff] a lot of leeway" (Schulman Deel., Ex.
D, at 58:13-58:22); there is no evidence that plaintiff did not
perform his duties due to a medical condition.
evidence supporting plaintiff's claim of pain.
that plaintiff was experiencing pain.
No doctor noted
admitted that he did not take any medication for his injuries
(except after his surgery)
(Schulman Deel., Ex. D, at 71:16-
71:25) and that any temporary pain he had subsided (Schulman
Deel., Ex. D, at 59:4-59:9).
Fourth, there was a demonstrable physical injury to
The nurse noted a deformity on plaintiff's
biceps, both she and Switz noted a bruise on plaintiff's biceps
(Makram Deel., Ex. A, at MED136)
and Dr. Lancellotti noted a
large hematoma on plaintiff's upper arm (Makram Deel.
13 & Ex.
B, at MED1822) . 16
Nonetheless, because the majority of the factors favor
I conclude that there is no genuine issue that
plaintiff did not experience a serious injury.
Even if there were a serious injury, plaintiff cannot
establish that any delay attributable to Dr. Makram caused a
worsening of his condition.
"Courts have found that a plain-
tiff's allegations fail to meet the objective prong where the
It is not clear whether there was a demonstrable physical
injury to plaintiff's rotator cuff.
Although Dr. Lancellotti
noted that there was "weakness of muscledistal [sic] to shoulder" (Makram Deel. ~ 13 & Ex. B, at MED1822), it is unclear
whether Dr. Lancellotti was referring to plaintiff's biceps or
his rotator cuff.
alleged delay in providing medical attention is neither the
underlying cause of a plaintiff's condition nor contributed to a
worsening in the condition[.]"
Cuffee v. City of New York, 15
Ci v . 8 91 6 ( PGG) ( DF) , 2 0 1 7 WL 12 3 2 7 3 7 at * 9 ( S . D. N . Y . Mar . 3 ,
tion marks omitted), adopted at, 2017 WL 1134768
(Gardephe, D.J.); accord Valdiviezo v. City of New
York, 15 Civ. 3902
(AJN), 2017 WL 1191528 at *5
(Nathan, D.J.), appeal filed, No. 17-1093 (2d Cir.
With regard to the biceps injury, Dr. Holder noted that
the injury was "chronic"
(Makram Deel., Ex. B, at MED090).
According to Dr. Makram, that meant that plaintiff had the injury
for a long time, but that his symptoms were aggravated on October
13, 2010 (Makram Deel.
The chronic nature of plaintiff's
condition was confirmed by the MRI, which showed no evidence of
muscle atrophy, and by Dr. Holder's findings that plaintiff had a
full range of motion in the biceps and no muscle weakness
Dr. Holder's diagnosis that plaintiff's injury was
chronic indicated to Dr. Makram that the delay in getting an MRI
was not a factor in determining whether plaintiff was amenable to
surgery (Makram Deel.
27), and there is no evidence that a
delay otherwise contributed to a worsening of the condition.
did any delay exacerbate the rotator cuff injury, given that Dr.
Holder concluded that there was no clinical rotator cuff tear and
did not recommend orthopedic intervention (Makram Deel., Ex. B,
Accordingly, there is no genuine issue of material fact
as to whether plaintiff's medical needs were sufficiently serious
to satisfy the objective prong of his deliberate indifference
State of Mind
As explained above, in order to succeed on his deliberate indifference claim, plaintiff also needs to prove that Dr.
Makram "act[ed] or fail[ed]
to act while actually aware of a
substantial risk that serious inmate harm w[ould] result."
Salahuddin v. Goord, supra,
467 F.3d at 280
citing Farmer v. Brennan, supra, 511 U.S. at 836-37; accord
Youmans v. City of New York, 14 F. Supp. 3d 357, 364
(Karas, D. J. ) .
However, there is no genuine issue of fact
as to whether Dr. Makram acted with a culpable state of mind.
Before the request for an MRI, Dr. Makram's only
involvement with plaintiff's medical care was reviewing his x-ray
(Makram Deel. '!I'll 8, 27) .
By that time, the request for an MRI
had already been approved (Makram Deel. '!I'll 8, 13).
had no role in the utilization review process; she never disapproved the MRI, and she was not involved in the request for more
information (Makram Deel.
17) . 17
Dr. Makram became
involved in obtaining the MRI when she spent several days calling
radiologists to find one willing to perform the procedure at a
location suitable for a medium security inmate, a matter that was
complicated due to the metal screws in plaintiff's shoulders
Far from being deliberately indifferent to
plaintiff's medical needs, Dr. Makram was trying to expedite
Nor did Dr. Makram play a role in delaying a referral
to Dr. Holder.
Dr. Makram reviewed plaintiff's MRI on December
1, 2010, two days after it arrived at the facility (Makram Deel.
18) . 18
That same day, Dr. Makram referred the report to Dr.
Lancellotti, who was plaintiff's treating physician (Makram Deel.
Plaintiff testified that he believed Dr. Makram denied the
request for an MRI based on financial considerations (Schulman
Deel., Ex. D, at 38:19-39:17).
This belief was based on a
conversation with Dr. Lancellotti and a past experience (Schulman
Deel., Ex. D, at 38:19-39:17).
However, any remarks by Dr.
Lancellotti are hearsay as to Dr. Makram and inadmissible, and
any belief that Dr. Makram denied his MRI because of financial
considerations, based on a past experience, is pure speculation.
There is no evidence that Dr. Makram was aware of a delay
between the MRI on November 15, 2010 and the receipt of the MRI
results by Woodbourne on November 29, 2010.
Finally, before reviewing Dr. Holder's evaluation, Dr.
Makram was not aware of any circumstances suggesting that plaintiff had sustained any injury requiring surgery on an expedited
This, too, cannot establish subjec-
See Spavone v. New York State Dep't of Corr.
Servs., supra, 719 F.3d at 138
(subjective recklessness "means
that the charged official [must] act or fail to act while actually aware of a substantial risk that serious inmate harm will
(alteration and emphasis in original; internal quotation
Plaintiff has failed to offer evidence sufficient to
give rise to a genuine issue of material fact with respect to his
deliberate indifference claim.
First, he has failed to offer
evidence sufficient to support a finding that Drs. Koenigsmann
and Whalen were personally involved in requesting, delaying or
approving the MRI.
Second, plaintiff has failed to offer evi-
dence sufficient to support a finding that his medical needs were
sufficiently serious and, therefore, plaintiff cannot satisfy the
objective prong of his claim.
Third, he has failed to offer
evidence sufficient to support a finding that Dr. Makram acted
with a culpable state of mind and, thus, plaintiff cannot satisfy
the subjective prong of his claim, either.
For the foregoing reasons, defendants' motion for
summary judgment is granted and the complaint is dismissed.
The Clerk of the Court is respectfully requested to mark this
New York, New York
July 7, 2017
United States Magistrate Judge
Copies sent to:
Because summary judgment has been granted with respect to
plaintiff's deliberate indifference claim, I need not address
defendants' argument that they are entitled to qualified immunity.
See, ~.g., Robles v. Khahaifa, No. 09CV718, 2012 WL
2401574 at *9 (W.D.N.Y. June 25, 2012) ("Given that no constitutional violation was found, this Court need not address defendants' alternative contention that they deserve qualified immunity for their actions.").
Plaintiff had requested the appointment of counsel in a
In light of the dismissal, the application is denied as moot.
The application will be docketed
contemporaneously with the docketing of this Opinion and Order.
Mr. Frank A. DeMeo
233 Pleasant Street
Ronkonkoma, New York
Steven N. Schulman, Esq.
Assistant Attorney General
State of New York
New York, New York 10271-0332
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