White v. Clement et al
Filing
16
ORDER granting in part and denying in part defendants' motion for summary judgment 8 . All of plaintiff's claims in this action are dismissed, except as to his First Amendment and Eighth Amendment claims against Jeremy Clement. In all other respects, defendants' motion is denied. Copy of Order sent to plaintiff. Signed by Hon. David G. Larimer on 7/22/15. (EMA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
DEQUANA WHITE,
Plaintiff,
DECISION AND ORDER
14-CV-6100L
v.
JEREMY CLEMENT, Registered Nurse,
WESLEY CANFIELD, Doctor, BEN OAKES,
Doctor, JOHN VONHAGN, Nurse
Administrator, CARL KOENIGSMANN,
Chief Medical Officer, and STEPHEN
WENDERLICH, Superintendent,
Defendants.
_______________________________________________
INTRODUCTION
Plaintiff, Dequana White, appearing pro se, commenced this action under 42 U.S.C.
§ 1983. Plaintiff, an inmate in the custody of the New York State Department of Corrections and
Community Supervision (“DOCCS”), alleges that defendants violated his rights under the Eighth
Amendment to the United States Constitution by denying him adequate medical care. Plaintiff also
alleges a violation of his First and Fourteenth Amendment rights based on the allegation that
defendants retaliated against him after he filed grievances and complaints concerning his lack of
adequate medical treatment.
Plaintiff has sued six defendants, all of whom are medical professionals employed by
DOCCS. On March 26, 2014, plaintiff’s retaliation claim was dismissed against all defendants
except for Jeremy Clement, and plaintiff’s equal protection claim was dismissed in its entirety. (Dkt.
#3). The underlying events, which relate mainly to plaintiff’s complaints of chest pain, took place
at Southport Correctional Facility (“Southport”) between July 2012 and February 2014.
Defendants have filed a motion for summary judgment. Plaintiff has not responded to the
motion.
BACKGROUND
Plaintiff became a DOCCS inmate at Southport on February 9, 2012. He alleges that
starting around July 16, 2012, he complained of severe chest pain, which made it difficult for him
to breathe or lift his left arm. During the relevant time period, the plaintiff alleges a series of
interactions with the medical staff at Southport, who largely ignored his complaints of chest pain.
Plaintiff also alleges that to the extent that defendants responded to his complaints, they gave him
medicine that was ineffective or inappropriate for his medical needs.
There is no dispute, however, that plaintiff was seen and treated by medical personnel,
albeit not to his satisfaction. Plaintiff details three instances when he was seen by a doctor at
Southport, and on one occasion he was sent outside the facility, to Arnot Ogden Medical Center,
for a mammogram, the results of which were negative. Plaintiff does not allege that he received
no treatment at all, but that the treatment he received was inadequate.
Between July 2012 and February 2014, plaintiff filed four grievances alleging improper
medical care against various staff members at Southport. On March 3, 2014, plaintiff filed the
complaint in this action.
The defendants filed their motion for summary judgment on July 7, 2014 (Dkt. #8).
Defendants’ motion papers, and this Court’s scheduling order (Dkt. #13) put plaintiff on notice
of his obligation to respond to the motion, and of the consequences of failing to do so. As stated,
plaintiff has not filed any response to the motion.
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DISCUSSION
I. Plaintiff’s Failure to Respond to the Summary Judgment Motion
Rule 56(e) of the Federal Rules of Civil Procedure provides that “[w]hen a motion for
summary judgment is made and supported as provided in this rule, an adverse party may not rest
upon the mere allegations or denial of the adverse party’s pleading, but the adverse party's
response by affidavits as otherwise provided in this rule must set forth specific facts showing that
there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if
appropriate, shall be entered against the adverse party.”
The Court of Appeals for the Second Circuit has held that when a party moves for summary
judgment against a pro se litigant, either the movant or the district court must provide the pro se
litigant with notice of the consequences of failing to respond to the motion. Vital v. Interfaith Med.
Ctr., 168 F.3d 412, 413 (2d Cir. 2001). In the instant case, defendants’ notice of motion for
summary judgment (Dkt. #8) and the subsequent order sent by the court (Dkt. #13) gave plaintiff
ample notice of the requirements of Rule 56 and the consequences of failing to respond properly to
a motion for summary judgment. There is no question that plaintiff has been adequately advised of
the pendency of the motion, of the need for him to respond and the form in which he should do so,
and of the consequences of not responding to defendants’ arguments and factual allegations. He has
not done so; therefore the Court may accept the truth of defendants’ factual allegations and determine
whether defendants are entitled to summary judgment. Crenshaw v. Syed, 686 F.Supp.2d 234, 23536 (W.D.N.Y. 2010).
II. Eighth Amendment: General Standards
In order to demonstrate that medical treatment amounts to “cruel or unusual punishment”
prohibited by the Eighth Amendment, a plaintiff must prove that a physician’s actions or omissions
amounted to “deliberate indifference to a serious medical need.” Estelle v. Gamble, 429 U.S. 97, 106
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(1976). A “serious medical need” is one which presents “‘a condition of urgency’ that may result in
‘degeneration’ or ‘extreme pain.’” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)). In determining whether a serious medical
need exists, the Court examines several factors, including whether the plaintiff had an injury or
condition “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; or the existence of chronic and substantial pain.” Lewis v. Zon, 920 F. Supp. 2d 379, 388
(W.D.N.Y. 2013) (quoting Chance, 143 F.3d at 702).
In assessing whether a care provider displayed “deliberate indifference,” the operative
question is whether the defendant acted with “a sufficiently culpable state of mind,” which “is the
equivalent of criminal recklessness.” Hathaway, 99 F.3d at 553. In the § 1983 context, mere
negligence, or even medical malpractice, is not actionable. See Estelle, 429 U.S. at 106.
Likewise, an inmate’s “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.” Chance, 143 F.3d at
703. When a case contains conflicting medical evidence about an inmate’s condition, “courts will
not attempt to second-guess licensed physicians as to the propriety of a particular course of medical
treatment for a given prisoner-patient.” Ross v. Kelly, 784 F. Supp. 35, 46 (W.D.N.Y.) (quoting
Thomas v. Pate, 493 F.2d 151, 158 (7th Cir. 1974)), aff’d, 970 F.2d 896 (2d Cir. 1992).
III. Application to this Case
Applying these standards to the case at bar, I find that defendants are entitled to summary
judgment, except as to defendant Clement, as explained below. Even giving the complaint the most
generous reasonable construction, plaintiff has failed to show that defendants acted with a culpable
state of mind. Plaintiff merely alleges his dissatisfaction with the type of medication and treatment
given to him.
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As to the objective aspect, plaintiff alleges that he complained of extreme pain. For example,
he alleges that on July 19, 2012, he informed defendant Oakes that “it was extremely difficult for
him to move his left arm and breath[e], and even wash up in the shower due to the pain he felt in his
chest.” Complaint ¶ 13.
As stated, however, plaintiff has not contradicted defendants’ assertions in support of their
motion. Plaintiff’s medical history, which is outlined in defendant Oakes’ declaration (Dkt. #8-4)
and its accompanying exhibits, indicates that over the time period at issue, plaintiff complained of
a number of symptoms (such as a lump in his breast area), but that he did not complain of the severe
pain described in the complaint.
Even assuming that plaintiff’s alleged chest pain presented a serious medical need, plaintiff
has failed to meet the subjective prong of proving that defendants acted with a culpable state of
mind. The complaint itself catalogs multiple instances where plaintiff was treated by doctors and
other medical personnel. The record contains over twenty health records and progress notes between
July 2012, and February 2014. (Oakes Decl. Ex. A. at 1-32).
The mere fact that plaintiff was seen by health care staff, standing alone, does not foreclose
a § 1983 claim. But the record shows more than that. Plaintiff was treated. With the exception of
one defendant, as explained below, his symptoms were not ignored.
Of particular note, the record shows that plaintiff was sent to an outside facility for a
mammogram, which came back negative for cancer, but showed that plaintiff had a left breast
gynecomastia, i.e., benign swelling of breast tissue, and lipoma, i.e., benign fatty tissue. (Id. at 31).
According to defendant Oakes, the mammogram was ordered not because of any complaints of pain,
but because of the enlargement of plaintiff’s breast tissue. Dkt. #8-4 ¶¶ 25, 28. Regardless of why
defendants took the decisions they did, however, their referral to an outside facility hardly bespeaks
deliberate indifference to plaintiff’s complaints.
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It is clear, then, that plaintiff did receive medical treatment; it was just not to his satisfaction.
(Id. at 31). But plaintiff’s disagreement over the type of treatment he received does not give rise to
the level of a constitutional claim. Chance, 143 F.3d at 703.
IV. Claims against Clement
As stated, plaintiff’s First Amendment claim against defendant Clement survived the Court’s
initial review. On the record presented, I find that defendants have not demonstrated that Clement
is entitled to summary judgment as to that claim, or as to plaintiff’s Eighth Amendment claim against
Clement. At this point, defendants have not rebutted plaintiff’s allegations that Clement ignored his
serious symptoms, and that he did so in retaliation for plaintiff’s filing of grievances.
The standards applicable to Eighth Amendment medical claims have been set forth above.
As to First Amendment retaliation claims, plaintiff must show that:
(1) he engaged in
constitutionally protected conduct; (2) the defendant took adverse action against him; and (3) there
was a causal connection between his protected conduct and the defendant’s adverse action. Dawes
v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v. Sorema
N.A., 534 U.S. 506 (2002).
With respect to the protected-activity prong, while there do not appear to be any copies in
the record of any grievances filed by plaintiff, his pro se complaint alleges that he did file grievances
about Clement. Plaintiff alleges that Clement said to plaintiff, when plaintiff came to see him for
medical treatment, “Spell my name right next time you write your grievances, being a cry baby is
not going to make me change your meds.” Complaint ¶ 40. Plaintiff also alleges that because of the
“grievances and complaints plaintiff filed,” Clement “refused to document and report [that] plaintiff
was vomiting blood and having nose bleeds as an adverse reaction to Naproxen 500 mg pills,” and
that as a result, plaintiff continued to be prescribed Naproxen. Id. ¶ 41.
In support of their motion for summary judgment, defendants do not contend that plaintiff
failed to engage in protected activity. In their brief, defendants argue that there is no “way to
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determine the temporal relation of Clement’s alleged comments to whatever grievances or
complaints plaintiff may have filed,” Dkt. #8-3 at 18, but they do not appear to deny that plaintiff
did file grievances or that he engaged in constitutionally protected activity. See Medina v. Skowron,
806 F.Supp.2d 647, 650 (W.D.N.Y. 2011) (“The filing of prison grievances is a constitutionally
protected activity”) (citing Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996)).
It is defendants’ burden, as the moving parties, to identify those portions of the record which
they believe demonstrate the absence of a genuine issue of material fact. Since they have failed to
do so here, the Court will assume, for purposes of deciding defendants’ motion, that plaintiff did
engage in constitutionally protected activity. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006).
As to the second prong of plaintiff’s First Amendment claim–adverse action against him by
Clement, as a result of plaintiff’s grievances–I find that on the record before me, there are genuine
issues of fact that preclude the entry of summary judgment for defendant.
The evidence relating to Clement’s adverse action also relates to plaintiff’s Eighth
Amendment claim. Both claims are based on the allegation that Clement refused to treat or
document plaintiff’s serious medical problems.
Clement’s alleged statement to plaintiff that “being a cry baby is not going to make me
change your meds,” Complaint ¶ 40, is not, viewed in isolation, enough to sustain either claim.
Although it could be interpreted as evincing some resentment over plaintiff’s grievances, by itself
it shows only that Clement believed that he had administered or prescribed the correct treatment for
plaintiff, and that he would not be cowed into changing that treatment simply because plaintiff had
filed a grievance against him.
Plaintiff alleges more than that, however. He alleges that “Clement refused to document and
report plaintiff was vomiting blood and having nose bleeds as an adverse reaction to Naproxen 500
mg pills,” and that as a result, plaintiff continued to be prescribed Naproxen, “which caused him
excruciating pain.” Complaint ¶ 41. That allegation, if true, indicates that Clement not only stuck
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to his prior course of treatment, but that he ignored evidence that the treatment was having serious
adverse side effects.
Citing plaintiff’s medical records, defendants state that on December 11, 2013, Clement saw
plaintiff, who was complaining of “chest pains [and] coughing up blood,” but that Clement “did not
find any physical problems,” and that he saw “no evidence of blood anywhere.” Def. Rule 56
Statement (Dkt. #8-2) ¶ 75. In support of that assertion, defendants cite plaintiff’s medical record,
and Oakes’s and Canfield’s declarations, which are apparently based on that record. See Dkt. #8-4,
#8-5.
There is no statement in the record from Clement, though. Oakes and Canfield both state that
they are “not aware of Nurse Clement denying medical treatment to any inmate,” including plaintiff,
Dkt. #8-4 ¶ 92; Dkt. #8-5 ¶ 83, but they do not claim to have been present on all occasions when
plaintiff was seen by Clement, or to have any personal knowledge of whether Clement did in fact
refuse to document plaintiff’s symptoms, as alleged in the complaint. In addition, assuming the truth
of plaintiff’s allegation that Clement deliberately refused to document plaintiff’s complaints or
symptoms, the absence of any notations in plaintiff’s medical record that he was actually vomiting
or coughing up blood when he was seen by Clement is hardly surprising. If anything, it is consistent
with plaintiff’s claim.
Assuming the truth of plaintiff’s allegation that Clement deliberately refused to document
his symptoms, in retaliation for plaintiff’s grievances, that refusal could constitute both deliberate
indifference to his serious medical needs, and adverse action sufficient to sustain a First Amendment
claim. Plaintiff’s allegation that he “was vomiting blood” certainly rises above the level of a minor,
transient symptom. Ignoring such a symptom could constitute deliberate indifference. See Morgan
v. Maass, 73 F.3d 369 (Table), 1995 WL 759203, at *2 (9th Cir. 1995) (defendant’s alleged response
to plaintiff’s report that he was vomiting blood, that plaintiff should “wait until sick line,” which
would not start for several hours, raised a material issue of fact as to whether defendant’s conduct
constituted deliberate indifference); Cooper v. City of Cottage Grove, No. 13-CV-0551, 2014 WL
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4187558, at *5 (D.Or. Aug. 21, 2014) (“a jury could infer that vomiting blood demonstrates an
obvious serious medical need”). Clement’s alleged refusal to take note of that symptom, because
plaintiff had filed a grievance against him, also might well dissuade a typical inmate in plaintiff’s
position from continuing to pursue grievances against Clement.
Based on the record before me, then, I conclude that, drawing all reasonable inferences in
favor of plaintiff, Clement’s alleged refusal either to document or treat plaintiff’s complaints and
symptoms, could support a finding that Clement took adverse action against plaintiff, and that he was
deliberately indifferent to plaintiff’s serious medical needs.
That is not to say that the Court finds plaintiff’s allegations against Clement credible, or that
his claims against Clement have merit. That is not for the Court to decide, at this juncture. The
issue before me now is whether defendants, as the moving parties, have succeeded in demonstrating
the absence of any genuine issues of material fact as to those claims. For the reasons stated above,
I conclude that they have not done so, as to defendant Clement.
CONCLUSION
Defendants’ motion for summary judgment (Dkt. #8) is granted in part and denied in part.
All of plaintiff’s claims in this action are dismissed, except as to his First Amendment and Eighth
Amendment claims against Jeremy Clement. In all other respects, defendants’ motion is denied.
IT IS SO ORDERED.
_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
July 22, 2015.
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