Gomez et al v. Fischer et al

Filing 76

ORDER denying 59 Motion to Supplement Complaint. Signed by Hon. H. Kenneth Schroeder, Jr on 5/9/2014. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

EDDIE GOMEZ, 94-A-1522, and
OLGA PADILLA,
Plaintiffs,

11-CV-476S(Sr)

v.
NORMAN BEZIO, et al.,
Defendants.

DECISION AND ORDER
This case was referred to the undersigned by the Hon. William M.
Skretny, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and
report upon dispositive motions. Dkt. #47.

Plaintiff’s complaint arises from an incident at the Southport Correctional
Facility on June 14, 2008 wherein inmate Eddie Gomez was observed by corrections
officers to pass pills to visitor Olga Padilla while Ms. Padilla was observed to pass
tobacco to Mr. Gomez. Dkt. #10, p.5. Following initial review, the following claims were
permitted to proceed: (1) Padilla’s claim that she was seized in violation of the Fourth
Amendment following the termination of the visit with Gomez; (2) Gomez’s denial of due
process claims regarding a disciplinary hearing charging him with providing medication
to another person, smuggling, and violating visitation procedures; (3) Gomez’s claims of
retaliation following the modification of his disciplinary sentence on appeal; (4) plaintiffs’
association claim based upon the suspension of visitation privileges; (5) Gomez’s

claims of interference with mail; and (6) Gomez’s claims of false misbehavior reports in
retaliation for filing grievances and denial of due process during the course of
disciplinary hearings regarding such misbehavior reports. Dkt. #10.

Currently before the Court is Mr. Gomez’s motion to supplement his
complaint to add RN Karen Weaver as a defendant in this action and to add a cause of
action alleging that RN Weaver, C.O. Kerbein and New York State Police Investigator
Aelpelbacher violated his constitutional right to confidentiality of medical information.
Dkt. #59. In support of his motion, Mr. Gomez alleges that during the course of
discovery, he received from defendants an incident report written by Investigator
Aelpelbacher stating that C.O. Kerbein had informed him
That facility RN Weaver examine[d] the pills and determined
them to be Visacodyl, which is an over the counter laxative.
That a review of Inmate Gomez’s medical records indicated
that he had been given this specific type of laxative by
facility medical staff on previous occasions with the last
being 03-17-08.
Dkt. #59-2, ¶ 8.

Defendants oppose the motion on the grounds of futility, arguing that the
release of information that plaintiff had been prescribed a laxative is outside of the
scope of protection under the Fourteenth Amendment. Dkt. #65, p.4.

Plaintiff responds that the release of information from his medical record
was a violation of his constitutional right to privacy. Dkt. #66, p.3.

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The United States Supreme Court has recognized a constitutional right to
privacy in personal information which the Court of Appeals for the Second Circuit has
characterized as a constitutional right to confidentiality in personal information, including
information relating to one’s health. Doe v. City of New York, 15 F.3d 264, 267 (2d Cir.
1994), citing Whalen v. Roe, 429 U.S. 589 (1977). However, “the interest in the privacy
of medical information will vary with the condition” and is confined to “narrow
parameters.” Powell v. Schriver, 175 F.3d 107, 111-12 (2d Cir. 1999). In determining
that individuals with HIV and transsexuals possess a constitutional right to maintain
medical confidentiality, for example, the Court of Appeals emphasized that these
conditions are likely to provoke both an intense desire to preserve one’s medical
confidentiality, as well as hostility and intolerance from others.” Id. In contrast, the
Court of Appeals has determined that ailments which are unlikely to provoke social
stigma are not protected. See Matson v. Board of Educ. of City Sch. Dist. of N.Y., 631
F.3d 57, 66-68 (2d Cir. 2011). Thus, disclosure of mental illness or substance abuse is
generally protected because such conditions are “likely to bring about public
opprobrium,” while disclosure of hepatitis, fibromyalgia, and everyday medical
conditions such as high cholesterol, frequent urination, osteoporosis, and acid reflux
are not constitutionally protected because there is no evidence to suggest that such
conditions provoke societal discrimination and intolerance. Id. at 66-68.

Plaintiff’s prescription of laxatives clearly falls within the realm of everyday
medical conditions for which constitutional protection is unwarranted. See Rush v.
Artuz, No. 00 Civ. 3436, 2004 WL 1770064, at *12 (S.D.N.Y. Aug. 6, 2004) (inmate’s
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“stomach problems cannot be classified as personal matter of a sensitive nature”
warranting constitutional protection). Accordingly, plaintiff’s motion to supplement his
complaint (Dkt. #59), is denied.

SO ORDERED.

DATED:

Buffalo, New York
May 9, 2014

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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