Harnage v. Lightner

          RULING ON MOTION FOR SUMMARY JUDGMENT [ECF NO. 63]

          Alvin W. Thompson United States District Judge.

         The plaintiff, James A. Harnage, commenced this civil rights action pro se. The remaining named defendants are: Health Services Administrator (“H.S.A.”) Rikel Lightner, Physician's Assistant (“P.A.”) Kevin McCrystal, ^[1] and Dr. Omprekash Pillai. The only remaining claim is an Eighth Amendment claim for deliberate indifference to serious medical needs relating to treatment of the plaintiff's hernia prior to surgery.^[2] The defendants have filed a motion for summary judgment. For the reasons that follow, that motion is granted except with respect to the claim against Dr. Pillai.

         I. LEGAL STANDARD

         A motion for summary judgment may be granted only where there are no issues of material fact in dispute and the moving party is therefore entitled to judgment as a matter of law. Rule 56(a), Fed. R. Civ. P.; Redd v. New York Div. of Parole, 678 F.3d 166, 173-74 (2d Cir. 2012). “When the nonmoving party will bear the burden of proof at trial, the moving party can satisfy its burden at summary judgment by ‘pointing out to the district court' the absence of a genuine dispute with respect to any essential element of its opponent's case: ‘a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.'” Cohane v. National Collegiate Athletic Ass'n, 612 Fed.Appx. 41, 43 (2d Cir. 2015) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

         Once the moving party meets this burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). He cannot “‘rely on conclusory allegations or unsubstantiated speculation' but ‘must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.'” Robinson v. Concentra Health Servs., 781 F.3d 42, 34 (2d Cir. 2015) (citation omitted). He must present such evidence as would allow a jury to find in his favor in order to defeat the motion for summary judgment. See Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).

         Although the court reads pro se papers liberally and interprets them to raise the strongest arguments they suggest, Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015), “unsupported allegations do not create a material issue of fact” and are insufficient to oppose a properly supported motion for summary judgment. Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).

         II. FACTS ^[3]

         The plaintiff was transferred to MacDougall-Walker Correctional Institution (“MacDougall”) on August 2, 2012. He began experiencing constipation between August and October of 2012, and informed medical staff at MacDougall of his condition. The plaintiff was not satisfied with the response from medical staff.

         The plaintiff concluded, through self-diagnosis, that the strain of moving his bowels during the period of constipation caused him to develop hemorrhoids and an abdominal hernia. The plaintiff was seen by multiple medical staff members for his various medical complaints, including P.A. McCrystal, Dr. Pillai and Dr. O'Halloran. The plaintiff denies that any staff member examined his abdomen or diagnosed a hernia.

         During the relevant period, P.A. McCrystal worked primarily in the chronic disease care program at MacDougall. The plaintiff saw P.A. McCrystal in the chronic care clinic to monitor his diabetes. The plaintiff told P.A. McCrystal that he was having problems with his abdomen. P.A. McCrystal told the plaintiff that he was seeing the plaintiff only for his diabetes and said the plaintiff should address his abdominal complaints with the doctor. The plaintiff knows that P.A. McCrystal is not a doctor or surgeon and does not know what treatment P.A. McCrystal can provide.

         Dr. Pillai practiced medicine at MacDougall during the relevant period. The plaintiff estimates that he saw Dr. Pillai between 12 and 15 times during the three-year period from the end of 2012 through 2015. The plaintiff has had the most contact with Dr. Pillai. The parties disagree whether Dr. Pillai provided treatment for the plaintiff's hernia. In July 2013, Dr. O'Halloran provided the plaintiff an abdominal wrap or binder.

         On April 25, 2014, Dr. Pillai submitted a request to the Utilization Review Committee (“URC”) for a surgical consult for the plaintiff. Such a consultation cannot occur without URC approval. Dr. Wu, a URC member, denied the request. A few days later, Dr. Pillai assisted the plaintiff in appealing the denial. Dr. Mauer, another URC member, approved the request on appeal and the plaintiff was scheduled for a surgical consult.

         The consult with surgeon Dr. David Giles occurred in July 2014. Dr. Giles later performed surgery on the plaintiff's abdominal hernia and his hemorrhoids. The hemorrhoidectomy occurred in October 2014, and the hernia surgery in September 2015. Dr. Giles determined that the hemorrhoidectomy was a priority and scheduled the order of the procedures.

         H.S.A. Lightner was not the director of health services. She did not practice medicine and did not treat patients. She did not supervise the URC and could not approve surgeries or surgical consultations.

         III. DISCUSSION

         The defendants move for summary judgment on four grounds: (1) any claims based on conduct occurring before May 2, 2013, are barred by the statute of limitations; (2) the defendants were not deliberately indifferent to the plaintiff's medical needs; (3) even if the plaintiff's constitutional rights were violated, the defendants are protected by qualified immunity; and (4) the request for injunctive relief should be dismissed.

         A. Statute of Limitations

         The defendants first argue that some of the plaintiff's claims are time-barred. In Connecticut, the applicable statute of limitations for a claim under 42 U.S.C. § 1983 is found in Conn. Gen. Stat. § 52-577, which provides that “[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” Lounsbury v. Jefferies, 25 F.3d 131, 133 (2d Cir. 1994).

         The plaintiff first referenced these claims in Harnage v. Woo, No. 3:16-cv-675(AWT), filed on May 2, 2016. The court dismissed Harnage v. Woo for improper joinder of claims and afforded the plaintiff an opportunity to refile his claims in separate cases. See Harnage v. Woo, id. (Initial Review Order, ECF No. 8, filed September 1, 2016, at 11-13). The plaintiff filed this action in response to that order. Thus, although the court assumed that the plaintiff would immediately file the separate actions as directed and not wait over five months to do so, the court liberally construes the limitations period to commence on May 2, 2013, three years before the plaintiff filed the prior action. See Harnage v. Giles, No. 3:17-cv-285(AWT) (D. Conn.) (Ruling on Motion to Dismiss, ECF No. 8, at 7-8) (similarly extending limitations period).

         The plaintiff stated in his deposition that he first noticed the hernia in October 2012, when it appeared as a small blister on his skin. Deposition Tr., Pl.'s Mem. Ex. 2A, ECF No. 117-3 at 46. He states in his affidavit, however, that he first noticed the hernia in May 2013. Pl.'s Aff., ECF No. 117-2, ¶ 26. As the plaintiff has submitted no objective evidence showing that he sought treatment for the hernia prior to May 2013, the court considers the plaintiff's claims as falling within the limitations period. Therefore, the request to dismiss any claims as time-barred is being denied.

         B. Deliberate Indifference to a Serious Medical Need

         The defendants argue that the plaintiff has not demonstrated the existence of a genuine issue of material fact as to whether they were deliberately indifferent to his hernia.

         The Supreme Court has held that deliberate indifference to a convicted prisoner's serious medical needs can constitute cruel and unusual punishment in violation of the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). A claim of deliberate indifference to serious medical needs has both an objective and a subjective component. See Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006).

         Under the objective component of the test, the alleged deprivation of medical care must be “sufficiently serious.” See Spavone v. New York State Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013) (quoting Salahuddin, 467 F.3d at 279). A “sufficiently serious” deprivation can exist if the plaintiff suffers from an urgent medical condition that can cause death, degeneration, or extreme or chronic pain and that significantly affects daily activities. See Brock v. Wright, 315 F.3d 158, 162-63 (2d Cir. 2003); Chance v. Armstrong, 143 F.3d 698, 702, 703 (2d Cir. 1998).

         A medical condition may not be serious initially, but may become serious because it is degenerative and, if left untreated or neglected for a long period of time, will “result in further significant injury or the unnecessary and wanton infliction of pain.” Harrison v. Barkley, 219 F.3d 132, 136-37 (2d Cir. 2000). The Second Circuit has identified several factors that are “highly relevant” to the question of whether a medical condition is sufficiently serious, including “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; or the existence of chronic and substantial pain.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998).

         Where, as here, the plaintiff complains about a delay in treatment, the court must focus on the effect of the delay rather than the underlying medical condition. See Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003); see also Cruz-Droz v. Marquis, No. 3:17-cv-1291(MPS), 2018 WL 1368907, at *4 (D. Conn. Mar. 16, 2018) (if claim is for temporary delay in otherwise adequate treatment, court focuses on delay rather than underlying medical need). The Second Circuit has held that a delay in treatment constitutes deliberate indifference where prison officials “ignored a life-threatening and fast-degenerating” condition for three days, Liscio v. Warren, 901 F.2d 274, 277 (2d Cir. 1990), or delayed needed major surgery for over two years. Hathaway v. Coughlin, 841 F.2d 48, 50-51 (2d Cir. 1988). The court considers the reason for the delay and whether the delay worsened the prisoner's condition. Smith, 316 F.3d at 187. “[I]n most cases, the actual medical consequences that flow from the alleged denial of care will be highly relevant to the question of whether the denial of treatment subjected the prisoner to a significant risk of serious harm.” Id. (citations omitted).

         The subjective component requires that the defendant prison official must have been actually aware of a substantial risk that the plaintiff would suffer serious harm as a result of his or her actions or inactions and have disregarded that risk. See Salahuddin, 467 F.3d at 2799-80. The fact that a prison official or employee “failed to alleviate a significant risk that he should have perceived, ...