Butler v. Dr. Genovese et al
Filing
73
OPINION & ORDER. The defendants' August 2, 2013 motion for summary judgment is granted. The Clerk of Court shall enter judgment for the defendants and close this case. (Signed by Judge Denise L. Cote on 11/15/2013) Copies Mailed By Chambers Willie Butler. (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
:
WILLIE BUTLER,
:
:
Plaintiff,
:
:
-v:
:
DIRECTOR DR. GENOVESE, et al.,
:
:
Defendants.
:
:
----------------------------------------X
12 Civ. 5693 (DLC)
OPINION & ORDER
APPEARANCES:
For plaintiff:
Willie Butler, pro se
04-A-3288
Otisville Correctional Facility
57 Sanitorum Road, P.O. Box 8
Otisville, NY, 10963-0008
For defendants:
Neil Shevlin
Assistant Attorney General
120 Broadway – 24th Floor
New York, NY 10271
DENISE COTE, District Judge:
Plaintiff Willie Butler (“Butler”), proceeding pro se,
filed this action pursuant to 42 U.S.C. § 1983 seeking
injunctive relief against defendants Dr. Maryann Genovese (“Dr.
Genovese”), Dr. Tasbirul Alam (“Dr. Alam”), and Nurse Barbara
Furco (“Furco”) (collectively, “defendants”). 1
Butler, an inmate
incarcerated by the New York State Department of Corrections and
Community Supervision (“DOCCS”) at Sing Sing Correctional
Facility (“Sing Sing”), alleges that the defendants violated his
constitutional rights by failing to provide him with proper
medical treatment.
On August 8, 2013, the defendants filed a
motion for summary judgment.
For the following reasons, the
motion is granted.
BACKGROUND
The following facts are undisputed or taken in the light
most favorable to the plaintiff unless otherwise indicated.
On
June 18, 2012, at approximately 7:40 a.m., Butler reported to
the Sing Sing infirmary complaining of “malaise” and a throbbing
headache that had increased in intensity over the prior few
days.
He was seen initially by Nurse Lightfoot, who conducted
an Electrocardiogram (“EKG”) and made preliminary notes in his
medical file.
Butler was asked to wait to see his primary care
physician, Dr. Alam.
At approximately 10:00 a.m., Dr. Alam examined Butler.
Butler informed Dr. Alam that he was not feeling well and had
1
Even if the complaint were construed to seek damages, for the
reasons stated below, the defendants would be entitled to
summary judgment.
2
been suffering from headaches for the last 2 to 3 days.
Dr.
Alam noted in Butler’s medical file that Butler’s tonsils and
neck glands were enlarged.
He diagnosed Butler with an upper
respiratory infection or tonsillitis.
Dr. Alam prescribed an
antibiotic, Zithromax, for the infection and ibuprofen for the
headaches as needed.
Dr. Alam subsequently modified the
antibiotic prescription to a 10-day supply of Doxycycline after
he was advised by the Sing Sing pharmacist against prescribing
Zithromax because of its interaction with one of Butler’s heart
medicines, Digoxin. 2
On the same day, Butler completed a grievance against Dr.
Alam and two other medical professionals: Dr. Genovese, the
medical director at Sign Sing, and Nurse Furco.
In the
grievance, Butler stated that, while still in the infirmary
after meeting with Dr. Alam, he asked for further medical
assistance from a nearby officer.
Nurse Furco then sent him
back to Dr. Alam, who allegedly became “very upset” with Butler.
According to Butler, Dr. Alam told Butler that he would not
“listen to [his] bullshit because” Dr. Alam had “spoke[n] with
Medical [Director] Genovese who told him that [Butler] ha[d] a
problem with [his] stomach.”
When Butler asked to see Dr.
2
Dr. Alam’s modification was oral and thus not noted in the
medical file. It is not disputed, however, that Butler received
Doxycycline, not Zithromax.
3
Genovese in order to verify the statement, Dr. Alam allegedly
“stormed out of the office.”
Dr. Alam returned seconds later,
stating that Dr. Genovese “told him for [Butler] not to worry.”
Butler apparently asked again to see Dr. Genovese, and Dr. Alam
allegedly denied Butler’s request and “began to yell causing the
officers to come in the office.”
Separate from this narrative relating to the events of June
18, Butler’s grievance included two additional points.
First,
he accused Dr. Alam of “giving medication [that is] for
different illnesses.”
He further accused Dr. Alam of
prescribing medicine that is the cause of his light-headedness
and head pains, and he identified a red pill in particular.
Second, he alleged that Furco refused to give him an EKG, which
he asserts is mandatory given his heart condition and pacemaker,
and that she told him “lie after lie,” such as that the EKG
machine did not have sufficient paper.
Butler completed the
grievance by requesting the removal of these medical
professionals.
On June 19, Butler signed for and received his ibuprofen
prescription and his 10-day prescription for Doxycycline.
Butler did not, however, complete the prescription for
Doxycycline.
By his own admission, he stopped taking the
medicine sometime between June 22 and June 25.
Butler states
that he did so because the Doxycycline was causing him to vomit
4
and break out with hives.
Butler admits that the former symptom
was occasional and disappeared after he stopped taking the
medicine.
The latter symptom, Butler alleges, persisted even
after he stopped taking the medicine.
Between June 19 and July 16 (the date on Butler’s federal
complaint in this case), Butler was examined by a medical
professional on five separate occasions: June 25, and July 3, 5,
9, and 13.
The notes for June 25 and July 3 do not include any
statement that Butler complained of suffering an adverse
reaction to the Doxycycline, either in the form of vomiting or
hives.
To the contrary, the notes for June 25 state that Butler
reported “feeling better.”
The notes for July 5 include a
statement that Butler complained of migraines and nausea.
The
nurse noted that Butler had stopped taking the Doxycycline due
to his belief that it brought about the nausea.
The nurse
scheduled Butler to see Dr. Alam at his next appointment.
The
notes for July 9 state that Butler continued to complain of
migraines and nausea, the latter of which he continued to assert
was a side effect of the Doxycycline.
for the migraines.
Butler was given Tylenol
The notes for July 13 state that Butler
continued to complain of migraines and was given more Tylenol.
On July 23, Butler had his follow-up appointment with Dr.
Alam.
Dr. Alam noted that Butler reported that the Doxycycline
had given him hives.
Dr. Alam’s notes do not include any
5
assessment that Dr. Alam made regarding the hives issue or any
response that Dr. Alam gave to Butler.
In a letter to the Court dated July 23 and received on July
26, Butler wrote that Dr. Alam “admit[ed] to prescribing [him]
the wrong medication” -- both because his file stated that he
was allergic to Doxycycline and because it was not supposed to
be taken with Digoxin.
He further alleged that, despite
becoming “very sick” from the Doxycycline, he was submitting
sick call sheets from his cell but was ignored.
He stated his
belief that his sick call sheets were being destroyed or hidden.
On July 30, Butler was seen by a nurse.
Her notes state
that Butler continued to complain of hives resulting from the
Doxycycline.
She examined Butler and wrote that no hives were
visible at the time.
She further noted that, while Doxycycline
could increase the Digoxin level, Butler was in “noncompliance,” having taken his Digoxin only five times in July.
On November 1, Butler saw his cardiologist, Dr. Tartaglia,
to check on his pacemaker.
Dr. Alam, dated October 10.
The visit was based on a referral by
Butler’s prior visit with Dr.
Tartaglia was on April 5.
Throughout this time period, Butler continued with the
internal grievance process at Sing Sing.
aforementioned grievance was filed.
On June 22, Butler’s
On July 3, the Inmate
Grievance Review Committee held a hearing; on July 10, it issued
6
a recommendation that the Superintendent “accept” the case.
The
Committee noted that the statements of Dr. Genovese, Dr. Alam,
and Furco regarding the events of June 18 were “contradictory.”
On July 12, Butler filed his appeal with the Superintendent.
August 9, the Superintendent denied Butler’s grievance.
On
On
August 17, Butler appealed to the Central Office Review
Committee.
On April 10, 2013, the Committee affirmed the
Superintendent’s denial of Butler’s grievance.
As noted, while the grievance process was ongoing, Butler
filed this lawsuit.
was filed on July 23.
His complaint is dated July 16, 2012; it
The complaint names three defendants: Dr.
Genovese, Dr. Alam, and Nurse Furco.
The complaint alleges
that, on June 18, Butler reported to sick call to be checked out
for abnormal headaches and “was given the wrong meds.”
Specifically, he alleges that he should not have been prescribed
Doxycycline due to its interaction with his heart medicine,
Digoxin.
He further alleges that he became “very sick” in the
form of vomiting and hives but was “denied medical attention”
and sent to his cell.
Butler’s grievance is attached to his
complaint.
Butler submitted two more letters to the Court relating to
the merits of his claim, dated October 22 and December 22, 2012.
In the October 22 letter, Butler requested a change in his
medical provider as he alleged that Dr. Alam suffered under a
7
conflict of interest, was acting towards him “with a[n]
attitude,” and that Dr. Alam apparently acted to prevent Butler
from seeing his cardiologist to check on the status of his
pacemaker.
He further alleged that someone placed an incorrect
notation in his medical file that he was being paroled.
In the December 22 letter, Butler made a series of points.
First, he alleged -- similar to his grievance -- that his
complaints after seeing Dr. Alam on June 18 were disregarded.
Second, he alleged that Dr. Alam prescribed him Doxycycline
despite his medical file stating that he was allergic to the
drug.
Third, Butler challenged Dr. Alam’s diagnosis that he
suffered an upper respiratory infection on June 18.
Fourth, he
noted the inconsistency between Dr. Genovese, Dr. Alam, and
Furco’s submissions in the internal grievance process.
Defendants moved to dismiss the suit on January 23, 2013 on
the basis that Butler had failed to exhaust his administrative
remedies.
By Order dated March 22, the Court denied the motion
to dismiss, and the case proceeded to discovery.
See Order of
March 22, 2013.
On August 2, 2013, defendants filed a motion for summary
judgment pursuant to Rule 56, Fed. R. Civ. P., and served Butler
with a “Notice to Pro Se Litigant Who Opposes a Motion for
8
Summary Judgment” pursuant to Local Rule 56.1. 3
Butler submitted
both an initial and supplemental opposition by September 6.
The
defendants chose not to submit a substantive reply, instead
stating by letter that they were resting on their initial
filing.
Thus the motion was fully submitted as of September 27.
DISCUSSION
Defendants raise anew a procedural argument presented in
their motion to dismiss, that Butler’s action must be dismissed
because his complaint was filed before he fully exhausted his
administrative remedies.
Although the Court already ruled
against defendants on this precise issue when denying the motion
to dismiss, defendants are correct that this prior ruling was in
error.
See Neal v. Goord, 267 F.3d 116, 121-23 (2d Cir.
2001)(holding that exhaustion subsequent to the filing of an
action is insufficient under 42 U.S.C. § 1997(e)), abrogated in
part on other grounds by Porter v. Nussie, 534 U.S. 516 (2002).
Thus, Butler’s premature filing of this action provides an
independent ground for dismissal of this case, although such
dismissal would be without prejudice.
Because discovery has
been completed, the Court turns to the merits of the summary
3
A “Notice For Pro Se Litigants Regarding Opposition to a
Summary Judgment Motion” was also attached to the May 10, 2013
Scheduling Order.
9
judgment motion, in which the defendants seek dismissal with
prejudice.
Summary judgment may not be granted unless all of the
submissions taken together “show[] that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Rule 56(a), Fed. R. Civ. P.
The
moving party bears the burden of demonstrating the absence of a
material factual question, and in making this determination, the
court must view all facts in the light most favorable to the
non-moving party.
Eastman Kodak Co. v. Image Technical Servs.,
Inc., 504 U.S. 451, 456 (1992); Holcomb v. Iona Coll., 521 F.3d
130, 132 (2d Cir. 2008).
Once the moving party has asserted facts showing that the
non-movant’s claims cannot be sustained, the opposing party must
“set out specific facts showing a genuine issue for trial,” and
cannot “rely merely on allegations or denials” contained in the
pleadings.
Rule 56(e), Fed. R. Civ. P.; see also Wright v.
Goord, 554 F.3d 255, 266 (2d Cir. 2009).
“A party may not rely
on mere speculation or conjecture as to the true nature of the
facts to overcome a motion for summary judgment,” as “[m]ere
conclusory allegations or denials cannot by themselves create a
genuine issue of material fact where none would otherwise
exist.”
Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010)
(citation omitted).
Only disputes over material facts -- “facts
10
that might affect the outcome of the suit under the governing
law” -- will properly preclude the entry of summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In considering the summary judgment motion, a court
liberally construes all submissions by the pro se plaintiff and
“interpret[s] [them] to raise the strongest arguments that they
suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006) (per curiam) (citation and emphasis omitted).
The application of this forgiving standard for pro se litigants,
however, “does not relieve plaintiff of his duty to meet the
requirements necessary to defeat a motion for summary judgment.”
Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003)
(citation omitted).
To sustain claims under 42 U.S.C. § 1983, the plaintiff
must show that he was “deprived of rights, privileges, or
immunities secured by the Constitution and laws [of the United
States]” by a person acting under color of state law.
Burg v.
Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (citation omitted); see
also Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir.
1995) (“Section 1983 is only a grant of a right of action; the
substantive right giving rise to the action must come from
another source.”).
Therefore, “the first step in any § 1983
claim is to identify the specific constitutional right allegedly
11
infringed.”
Pabon v. Wright, 459 F.3d 241, 252–53 (2d Cir.
2006) (citation omitted).
As a sentenced prisoner, all of Butler’s claims arise under
the Eighth Amendment.
“The Eighth Amendment forbids ‘deliberate
indifference to serious medical needs of prisoners.’”
Spavone
v. New York State Dep't of Corr. Servs., 719 F.3d 127, 138 (2d
Cir. 2013)(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
“A deliberate indifference claim contains two requirements.
The
first requirement is objective: the alleged deprivation of
adequate medical care must be ‘sufficiently serious.’”
Id.
(quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
“The
second requirement is subjective: the charged officials must be
subjectively reckless in their denial of medical care.
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. (citation omitted).
Based on a close review of Butler’s complaint, including
the grievance attached to it, various letters to the Court, and
his deposition, Butler’s allegation that he was denied medical
treatment on June 18, 2012 appears to consist of two distinct
Eighth Amendment claims.
First, he alleges that Dr. Alam was
deliberately indifferent to his medical needs because he
prescribed Butler Doxycycline, even though the medical file
stated that Butler was allergic to the drug.
12
Second, he alleges
that Dr. Alam was deliberately indifferent to his medical needs
because Doxycycline should not be taken with Butler’s heart
medicine, Digoxin.
The additional factual material presented by
Butler has been considered as evidence that Butler has offered
in support of his two Eighth Amendment claims.
Butler’s alleged
harm from both claims is that he suffered vomiting and hives;
his sought-after relief is the removal of all three medical
professionals, either entirely or at least from his care.
A. Allergy to Doxycycline
Butler’s principal Eighth Amendment claim is that Dr. Alam
improperly prescribed him Doxycycline when his medical file
stated that he was allergic to the drug. 4
Defendants assert that
Butler’s vomiting and hives are insufficiently serious to raise
an Eighth Amendment claim, and that Butler has made no showing
of any causal connection between the Doxycycline and these
symptoms because Butler admits that he stopped taking the
medicine before any record of his symptoms appears in the
medical file.
Defendants also assert that Dr. Alam was not
deliberately indifferent to Butler’s Doxycycline allergy
because, as of June 18, 2012, Butler’s file did not state that
4
Although barely mentioned in Butler’s complaint, this claim
was presented in letters to the Court, Butler’s deposition, and
in his opposition to summary judgment.
13
he had any such allergy.
Defendants point out that it was Dr.
Alam who contacted the Sing Sing pharmacy to report Butler’s
allergy, which led to the Doxycycline allergy being added to
Butler’s electronic and physical file.
It is assumed without deciding that Butler’s alleged
allergic reaction to the Doxycycline raises a question of fact
as to whether he suffered a sufficiently serious medical
condition. 5
Defendants have shown, however, that there is
insufficient evidence of Dr. Alam’s deliberate indifference to
the alleged allergy to raise a question of fact requiring
resolution at trial.
Not a single page in Butler’s medical file includes a
reference to his Doxycycline allergy that predates June 18,
2012.
Every reference to Butler’s Doxycycline allergy in the
medical file postdates the date on which Dr. Alam prescribed
Doxycycline.
Butler himself does not assert that he was aware
of any such allergy when he saw Dr. Alam on June 18 and does not
describe any prior occasion on which the allergy was diagnosed
or DOCCS was informed of the allergy.
5
Butler admitted in his deposition that his vomiting was
“occasional” and that it disappeared after he stopped taking the
Doxycycline, which was within one week of the June 18
appointment. As to the hives, there is no evidence in the
medical file that Butler actually had hives. For example, the
notes for July 30 state that, even though Butler complained of
hives, no hives were visible.
14
The sole evidence offered by Butler to support his claim
that Dr. Alam may have been aware of the allergy as of June 2012
is the front cover of his medical file.
Because this cover is
Butler’s sole evidence, the Court describes it in some detail.
The top third of the cover consists of a header with a seal of
New York State, the description “State of New York, Department
of Corrections, Health Record folder,” and entries for an
inmate’s name, identification number, date of birth, and
allergies.
Handwritten in these entries on Butler’s cover are
his full name, identification number, date of birth, and, toward
the right margin, two allergies: “Pencillin” and “Doxycy.”
Notably, the two allergy entries appear to have been written by
different persons at different times.
“Pencillin” is written in
print handwriting; “Doxycy” is written in cursive.
Below the
header area, on the left side of the cover, are two stamps.
stamp reads “Confidential Information.”
The second stamp reads
“Chart Thinned” with entries for a date and signature.
initialed and dated “2/9/12.”
One
It is
Finally, on the bottom right side
of the cover are some handwritten notes that are illegible.
Butler asserts that this cover, which bears a date of February
9, 2012 and his Doxycycline allergy, is proof that his
Doxycycline allergy was officially part of his medical records
as of February 2012.
15
There is, however, no reasonable basis by which one could
reach that conclusion.
The February 19, 2012 date is part of
the “Chart Thinned” stamp and is an entirely separate entry from
the allergy list.
Furthermore, it is quite clear from the
difference in handwriting that the word Doxycycline was added to
the cover sometime after the Penicillin allergy was noted.
Given that the Doxycycline allergy could have been added at any
time since Butler’s medical file was created, it is pure
speculation for Butler to suggest that it must have been added
on February 19, 2012 simply because that is the only date that
appears on the cover of his medical file.
Moreover, the remainder of Butler’s medical file undermines
the proposition that Butler’s Doxycycline allergy was
established as of February 19, 2012.
In a patient referral
document dated April 2012, it lists only “Penicillin” in the
allergy field.
Additionally, in four “Treatment & Medication
Record” sheets, dated May through August 2012, the allergy field
lists only “Penicillin.”
Butler has therefore failed to offer
sufficient evidence that would permit a jury to find that, as of
June 18, Dr. Alam was on notice of Butler’s allergy to
Doxycycline.
16
B. Interaction with Digoxin
The principal focus of Butler’s complaint is that Dr. Alam
erred by prescribing him Doxycycline when it should not be taken
with his heart medicine, Digoxin.
Defendants assert that
Doxycycline is not “contraindicated” to Digoxin 6 and that, in any
event, Butler was generally non-compliant in taking Digoxin.
Butler has failed to raise a question of fact that Dr. Alam
was deliberately indifferent to his serious medical needs by
prescribing Doxycycline to Butler when he was already taking
Digoxin.
Defendants have submitted the declaration of Dr. Alam
stating that Doxycycline is not contraindicated to Digoxin, and
that a patient taking Doxycycline can safely take Digoxin so
long as the Doxycycline prescription is limited to ten days,
which it was here.
6
Although not explained by defendants, the definition of
“contraindicated” in medical parlance is a “specific situation
in which a drug, procedure, or surgery should not be used
because it may be harmful to the patient.”
MedlinePlus Medical
Encyclopedia, U.S. National Institutes of Health, Jan. 21, 2013,
http://www.nim.nih.gov/medlineplus/ency/article/002314.htm.
There are two types of contraindications: “relative” and
“absolute.” The former means that “caution should be used when
two drugs or procedures are used together,” whereas the latter
means that “the event or substance could cause a lifethreatening situation.” Id. Although defendants do not specify
which type or types of contraindication they are disputing, it
is likely that they mean “absolute contraindication” because Dr.
Alam concedes that there may be adverse drug interactions
between Doxycycline and Digoxin in certain circumstances not
present here.
17
Butler does not dispute the defendants’ assertions in his
opposition to summary judgment.
The medical label for
Doxycycline lists Digoxin as a possible drug interaction and
counsels that “additional monitoring” “may be needed” when a
patient is taking Digoxin.
Because the medical label is
consistent with both Dr. Alam’s declaration and his treatment of
Butler in this case, it does not raise a question of fact that
Dr. Alam was deliberately indifferent to Butler’s serious
medical needs.
CONCLUSION
The defendants’ August 2, 2013 motion for summary judgment
is granted.
The Clerk of Court shall enter judgment for the
defendants and close this case.
SO ORDERED:
Dated:
New York, New York
November 15, 2013
__________________________________
DENISE COTE
United States District Judge
18
COPIES MAILED TO:
Willie Butler
04-A-3288
Otisville Correctional Facility
57 Sanitorum Road, P.O. Box 8
Otisville, NY, 10963-0008
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?