Conti v. Zamilus et al
Filing
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OPINION AND ORDER re: 44 MOTION for Summary Judgment filed by G. Zamilus, Joseph Avanzato. The motion for summary judgment is GRANTED. The Clerk is instructed to terminate the motion. (Doc. #44). The Clerk is further instructed to m ail a copy of this Opinion and Order to plaintiff at the address on the docket, and close this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Vincent L. Briccetti on 11/26/2018) (mml) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DENNIS CONTI,
:
Plaintiff,
:
v.
:
:
DR. G. ZAMILUS and DR. JOSEPH
:
AVANZATO,
:
Defendants.
:
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OPINION AND ORDER
16 CV 7741 (VB)
Briccetti, J.:
Plaintiff Dennis Conti, proceeding pro se and in forma pauperis, brings this action against
defendants Dr. Gaetan Zamilus 1 and Dr. Joseph Avanzato under 42 U.S.C. § 1983, alleging they
provided him constitutionally inadequate medical care.
Before the Court is defendants’ motion for summary judgment. (Doc. #44).
For the reasons set forth below, defendants’ motion is GRANTED.
The Court has subject matter jurisdiction under 28 U.S.C. § 1331.
BACKGROUND
Defendants have submitted a memorandum of law, a statement of facts pursuant to Local
Civil Rule 56.1, declarations, and supporting exhibits, which reflect the following factual
background. 2
1
Sued herein as Dr. G. Zamilus.
2
On October 19, 2018, the Court deemed the motion fully submitted and unopposed.
(Doc. #54). Because plaintiff has not submitted a statement of facts pursuant to Local Civil Rule
56.1, the material facts set forth in defendants’ Local Rule 56.1 statement, when supported by the
summary judgment record, are deemed admitted for purposes of this motion. See Local Civil
Rule 56.1(c).
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I.
Plaintiff’s Medical Treatment
At all relevant times, plaintiff, a former heroin addict, was in the custody of the New
York State Department of Corrections and Community Supervision (“DOCCS”) and incarcerated
at Fishkill Correctional Facility (“Fishkill”); Dr. Zamilus worked as a DOCCS physician at
Fishkill; and Dr. Avanzato was Fishkill’s Facility Health Services Director.
Plaintiff suffers from high blood pressure and cervical radiculopathy, a degenerative
spinal condition that causes him chronic discomfort and pain. Starting in December 2009, he
continuously took MS Contin at varying dosages to manage his symptoms.
MS Contin is an addictive opioid usually prescribed for severe chronic pain. Patients
taking an opioid can develop increasing tolerance to it over time, causing them to require higher
dosages to achieve the same effect and thereby increasing the risk of a life-threatening overdose.
DOCCS assigns each inmate at Fishkill a primary care provider who conducts physical
examinations, completes written health records documenting treatment, assesses the inmate’s
medication requests, and dispenses or prescribes medicine as appropriate.
In February 2016, Dr. Zamilus became plaintiff’s primary care provider. Plaintiff was
taking 105 milligrams of MS Contin daily at that time—a high dosage typically prescribed for
patients with cancer or a debilitating illness.
On February 23, 2016, plaintiff had his first appointment with Dr. Zamilus, to address
acute elevated blood pressure. Dr. Zamilus adjusted plaintiff’s blood pressure medication.
On February 28, 2016, a nurse noted plaintiff’s MS Contin prescription would expire on
March 3, 2016, and sent plaintiff’s chart to Dr. Zamilus to evaluate a prescription renewal at a
daily dosage of 105 milligrams.
2
Dr. Zamilus reviewed plaintiff’s medical chart and concluded it did not support such a
high dosage. Dr. Zamilus believed plaintiff had developed a dependency on MS Contin,
potentially endangering plaintiff’s life.
On March 3, 2016, plaintiff met with Dr. Zamilus at the clinic and reported severe
cramping caused by plaintiff’s blood pressure medication. Thereafter, having not personally
evaluated plaintiff, and concerned plaintiff’s MS Contin dosage could be too high, Dr. Zamilus
issued a five-day prescription for MS Contin at 90 milligrams daily, comprised of two 45milligram administrations. Shorter prescription intervals caused Dr. Zamilus to review
plaintiff’s medical file more often, enabling him to more closely monitor plaintiff’s condition.
On March 17, 2016, plaintiff went to Fishkill’s medical clinic and complained his MS
Contin dosage was being reduced too quickly. Dr. Zamilus nonetheless reduced plaintiff’s MS
Contin dosage, from 90 to 60 milligrams daily, for a two-week period.
On March 30, 2016, a nurse asked Dr. Zamilus to evaluate whether to again renew
plaintiff’s MS Contin prescription. Dr. Zamilus renewed the 60-milligram prescription for ten
days. Dr. Zamilus saw plaintiff at the clinic five days later and continued him on MS Contin at
60 milligrams daily.
On April 7, 2016, Dr. Zamilus renewed plaintiff’s 60-milligram prescription for fifteen
days.
On April 11, 2016, Dr. Zamilus saw plaintiff at the clinic for elevated blood pressure.
Suspecting plaintiff’s blood pressure rise might be attributable to plaintiff’s “agitation” about his
reduced MS Contin dosage, Dr. Zamilus increased plaintiff’s daily MS Contin dosage from 60 to
90 milligrams. (Doc. #47-4 ¶ 12).
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Plaintiff continued taking 90 milligrams of MS Contin daily until Dr. Zamilus reduced
plaintiff’s dosage back to 60 milligrams on July 18, 2016.
On July 29, 2016, Dr. Zamilus referred plaintiff to a pain management specialist for the
purpose of evaluating possible non-opioid alternatives to MS Contin.
Plaintiff saw the pain management specialist on August 12, 2016. The specialist
recommended an electromyography (“EMG”) for plaintiff’s spinal symptoms and also
recommended that plaintiff continue taking 60 milligrams of MS Contin daily while trialing
Lyrica, a non-opioid medication prescribed for chronic pain. Four days later, as recommended
by the pain management specialist, Dr. Zamilus referred plaintiff for an EMG. Later that week,
Dr. Zamilus referred plaintiff to the pain management specialist for a follow-up appointment.
On August 22, 2016, Dr. Zamilus prescribed Lyrica at 25 milligrams daily.
While portions of plaintiff’s medical records are illegible, it appears he continued taking
60 milligrams of MS Contin daily and 25 milligrams of Lyrica daily through October 4, 2016.
At his deposition, plaintiff testified he could function on 90 daily milligrams of MS
Contin, but that lower dosages caused blood pressure increase, anxiety, stiffness, spasms,
bruising, nerve damage, and extreme pain that limited plaintiff’s daily activity and interfered
with his work in the prison mess hall. He also stated Dr. Zamilus examined plaintiff only once,
to perform a routine biennial examination, and testified he did not receive Lyrica until he was
transferred from Dr. Zamilus to another primary care provider. Plaintiff further testified his new
primary care provider discontinued plaintiff’s MS Contin and Lyrica in August 2017.
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II.
Plaintiff’s Prison Grievances
Plaintiff filed three prison grievances against Dr. Zamilus concerning his administration
of MS Contin. Two accused Dr. Zamilus of improperly reducing plaintiff’s dosage. The third
accused Dr. Zamilus of failing to renew plaintiff’s prescription.
Plaintiff’s grievance submissions express the following concerns: Dr. Zamilus first
decreased plaintiff’s MS Contin dosage without having seen him; told plaintiff the government
was cracking down on opioid abuse, and Dr. Zamilus would not jeopardize his medical license
by continuing plaintiff on a 105-milligram MS Contin dosage; told plaintiff only cancer patients
take morphine; disagreed with plaintiff that he has “severe” stenosis; and never reviewed prior
healthcare providers’ treatment plans or asked plaintiff about his pain. (See Doc. #47-3 at 44
(summarizing plaintiff’s complaints)). 3 Plaintiff also alleged a nurse said Dr. Zamilus did not
believe in opioids and would take plaintiff off MS Contin. (Id. at 51).
Dr. Avanzato investigated plaintiff’s grievances alleging improper dosage reductions. He
did not interview plaintiff as part of the investigation, because an interview was not required and
Dr. Avanzato felt an interview was unnecessary. After interviewing and obtaining a written
response from Dr. Zamilus and researching published guidance on opioid usage to manage
chronic pain, Dr. Avanzato concluded Dr. Zamilus managed plaintiff’s medication in accordance
with Dr. Zamilus’s professional responsibilities. DOCCS’s Deputy Superintendent of Health
Services, identified in the record as A. Maume, likewise concluded Dr. Zamilus acted
appropriately.
Plaintiff’s grievances were denied.
3
Citations to plaintiff’s grievances reflect page numbers assigned by ECF.
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III.
Opioid Management, Use, and Abuse
Many patients prescribed opioids suffer serious addiction and overdose-related death.
MS Contin’s manufacturer’s medication guide warns MS Contin “can put you at risk for
overdose and death.” (Doc. #47-2). Inmates with a history of substance abuse are particularly
susceptible.
The Centers for Disease Control recommend healthcare providers prescribe opioids at the
lowest effective dose. According to a sworn declaration of DOCCS Regional Medical Director
David Dinello, M.D., the National Institute of Health and New York State Department of Health
recommend that providers treat pain using non-addictive alternatives to opioids and prescribe
narcotics or medications with abuse potential for no more than seven days. (Doc. #47-5 ¶ 6).
After plaintiff filed this lawsuit, DOCCS implemented a statewide initiative to
significantly reduce inmates’ prescriptions for medications with abuse potential—a category to
which MS Contin belongs. Pursuant to DOCCS’s Medications with Abuse Potential Policy,
effective June 1, 2017, each such prescription requires a DOCCS Regional Medical Director’s
approval.
DISCUSSION
I.
Standard of Review
The Court must grant a motion for summary judgment if the pleadings, discovery
materials before the Court, and any affidavits show there is no genuine issue as to any material
fact and it is clear the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material when it “might affect the outcome of the suit under the governing
law. . . . Factual disputes that are irrelevant or unnecessary” are not material and thus cannot
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preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(citation omitted).
A dispute about a material fact is genuine if there is sufficient evidence upon which a
reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. at 248. The Court “is not to resolve disputed issues of fact but to assess whether
there are any factual issues to be tried.” Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir.
2010) (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986)). It is the moving
party’s burden to establish the absence of any genuine issue of material fact. Zalaski v. City of
Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir. 2010).
If the non-moving party fails to make a sufficient showing on an essential element of his
case on which he has the burden of proof, then summary judgment is appropriate. Celotex Corp.
v. Catrett, 477 U.S. at 322–23. If the non-moving party submits “merely colorable” evidence,
summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249–50. The
non-moving party “must do more than simply show that there is some metaphysical doubt as to
the material facts, and may not rely on conclusory allegations or unsubstantiated speculation.”
Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (internal citations omitted). The
mere existence of a scintilla of evidence in support of the non-moving party’s position is
likewise insufficient; there must be evidence on which the jury reasonably could find for him.
Dawson v. Cty. of Westchester, 373 F.3d 265, 272 (2d Cir. 2004) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. at 252).
On summary judgment, the Court construes the facts, resolves all ambiguities, and draws
all permissible factual inferences in favor of the non-moving party. Dallas Aerospace, Inc.
v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). If there is any evidence from which a
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reasonable inference could be drawn in the non-movant’s favor on the issue on which summary
judgment is sought, summary judgment is improper. Sec. Ins. Co. of Hartford v. Old Dominion
Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).
In deciding a motion for summary judgment, the Court may consider only evidence that
would be admissible at trial. Nora Bevs., Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d
Cir. 1998) (citation omitted).
II.
Application
Defendants argue the undisputed facts demonstrate defendants afforded plaintiff
constitutionally adequate medical care.
The Court agrees.
The Eighth Amendment affords plaintiff the constitutional right to adequate medical care
while imprisoned. See Estelle v. Gamble, 429 U.S. 97, 103–04 (1976). To prevail on an Eighth
Amendment claim for inadequate medical care, plaintiff must show an “act[] or omission[]
sufficiently harmful to evidence deliberate indifference to serious medical needs.” Id. at 106.
This test has both an objective and a subjective component: plaintiff must show (i) a
“sufficiently serious” deprivation of medical care, and (ii) that the officials in question acted with
a “sufficiently culpable state of mind.” Salahuddin v. Goord, 467 F.3d 263, 279–80 (2d Cir.
2006) (citation omitted).
The objective component has two subparts. First, plaintiff must show he “was actually
deprived of adequate medical care,” keeping in mind that only “reasonable care” is required.
Salahuddin v. Goord, 467 F.3d at 279 (citing Farmer v. Brennan, 511 U.S. 825, 839–40 (1970)).
“Second, the objective test asks whether the inadequacy in medical care is sufficiently serious,”
by examining “how the offending conduct is inadequate and what harm, if any, the inadequacy
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has caused or will likely cause the prisoner.” Id. at 280 (citing Helling v. McKinney, 509 U.S.
25, 32–33 (1993)).
To satisfy the subjective component, plaintiff must show defendants were aware of his
serious medical needs and consciously disregarded a substantial risk of serious harm.
Salahuddin v. Goord, 467 F.3d at 280. “[N]egligence, even if it constitutes medical malpractice,
does not, without more,” amount to deliberate indifference giving rise to an Eighth Amendment
claim. Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). Likewise, “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 Amendment violation.” Id. (citation omitted). When the plaintiff has not alleged “an act
or a failure to act by the prison doctor that evinces ‘a conscious disregard of a substantial risk of
serious harm,’” id. (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)), proper
diagnosis and treatment “implicate medical judgments and, at worst, negligence amounting to
medical malpractice, but not the Eighth Amendment,” Sonds v. St. Barnabas Hosp. Corr. Health
Servs., 151 F. Supp. 2d 303, 312 (S.D.N.Y. 2001) (citing Estelle v. Gamble, 429 U.S. at 107).
Here, based on the undisputed facts, no reasonable juror could conclude plaintiff has
satisfied either the objective or the subjective component of an Eighth Amendment claim.
The record shows defendants provided plaintiff reasonable medical care. From February
to October 2016, Dr. Zamilus repeatedly met with plaintiff, adjusted plaintiff’s MS Contin
dosage, referred plaintiff to other providers, and renewed plaintiff’s MS Contin prescriptions.
Dr. Zamilus first considered lowering plaintiff’s MS Contin dosage based on Dr. Zamilus’s
concern that plaintiff’s dosage was too high. Plaintiff’s history of heroin abuse and the potential
use of a non-opioid alternative to treat plaintiff’s pain also informed Dr. Zamilus’s treatment.
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Moreover, Dr. Avanzato and DOCCS’s Deputy Superintendent of Health Services both
assessed Dr. Zamilus’s care of plaintiff and determined Dr. Zamilus’s decisions to reduce
plaintiff’s MS Contin dosage and issue shorter prescriptions were medically appropriate.
These actions were all reasonable; the Eighth Amendment does not require defendants to
have done more.
The uncontested facts also establish neither defendant acted with a “sufficiently culpable
state of mind.” Salahuddin v. Goord, 467 F.3d at 280. Assuming as true plaintiff’s allegations
concerning Dr. Zamilus’s conduct, his statements concerning a government crackdown on opioid
prescriptions, failure to reference plaintiff’s medical chart, disagreement whether plaintiff’s
stenosis was severe, comment that only cancer patients are prescribed morphine, and reductions
of plaintiff’s MS Contin dosage do not evidence that Dr. Zamilus subjectively knew of, and
chose to disregard, a substantial risk of serious harm to plaintiff’s health. Rather, the record
shows Drs. Zamilus and Avanzato assessed MS Contin’s risks and determined lowering
plaintiff’s dosage was prudent. Plaintiff thus fails as a matter of law to satisfy the subjective
component of an Eighth Amendment deliberate indifference claim.
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CONCLUSION
The motion for summary judgment is GRANTED.
The Clerk is instructed to terminate the motion. (Doc. #44).
The Clerk is further instructed to mail a copy of this Opinion and Order to plaintiff at the
address on the docket, and close this case.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v United States, 369 U.S. 438, 444–45 (1962).
Dated: November 26, 2018
White Plains, NY
SO ORDERED:
____________________________
Vincent L. Briccetti
United States District Judge
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