Crowder v. Farinella

          RULING AND ORDER ON MOTION FOR SUMMARY JUDGMENT

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         Christopher H. Crowder (“Plaintiff”), currently incarcerated at MacDougall-Walker Correctional Institution and proceeding pro se, filed this lawsuit under 42 U.S.C. § 1983. He contends that Drs. Farinella, Cary Freston, Syed Naqvi, and Ruiz, and Rodolofo Alvarez, a recreation supervisor (the “Defendants”) were deliberately indifferent to his medical needs, and violated his Eighth Amendment Rights.^[1] Complaint, ECF No. 1 (July 10, 2017).

         Defendants have filed a motion for summary judgment and seek to dismiss the case in its entirety. Motion for Summary Judgment, ECF No. 58 (Feb. 7, 2019).

         For the following reasons, the motion for summary judgment is GRANTED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations^[2]

         1. Medical Care

         Mr. Crowder allegedly suffers from multiple sclerosis, a condition allegedly in remission during the time relevant to this lawsuit. From June 2013 through November 2015, the medical staff at MacDougall-Walker Correctional Institution treated Mr. Crowder a number of times. Defendants’ Local Rule 56(a)(1) Statement, ECF No. 58-2 ¶ 1 (Feb. 7, 2019) (“Defs.’ SMF”).

         Drs. Farinella, Freston, Ruiz, and Naqvi served on the Utilization Review Committee, see Amended Complaint, ECF No. 23 (Nov. 29, 2017) (“Am. Compl.”), which is a panel comprised of four doctors in order determine whether a consultation with outside physicians or specialists is necessary. Memorandum in Support of Defendants’ Motion, ECF No. 58 at 15 (Feb. 7, 2019) (“Defs.’ Br.”).

         In April of 2015, Mr. Crowder first met with Dr. Omprakash Pillai, a treating physician at the facility. Defs.’ SMF ¶ 3. On June 1, 2015, Dr. Pillai performed an examination of Mr. Crowder and submitted two requests to the Utilization Review Committee, for a consultative examination by a pulmonologist and an echocardiogram by a cardiologist. Id. ¶¶ 3-5, 7.

         The Utilization Review Committee denied both requests. With respect to the first request, the objective data observed did not show any abnormalities and the Utilization Review Committee thus recommended Mr. Crowder be monitored and reassessed over time. Id. ¶¶ 6-7. With respect to the second request, the Utilization Review Committee recommended that the treating physician obtain an echocardiogram, continue monitoring Mr. Crowder, and consider a mental health referral. Id. ¶¶ 7-8. In August of 2015, Dr. Pillai met with Mr. Crowder to discuss the requests. Id. ¶ 9.

         Mr. Crowder continued to go to the medical unit on a regular and recurring basis. Id. ¶ 10. On September 8, 2015, he met with a nurse to discuss his concerns after strenuous exercise, including the tightening of his right hip. Id. ¶ 11. The nurse attributed Mr. Crowder’s concerns to his multiple sclerosis and noted that there was no indication of breathing problems that would prevent him from exercising. Id.

         On May 17, 2016, Dr. Pillai met with Mr. Crowder and again submitted two requests to the Utilization Review Committee: an initial consultation with a pulmonologist and an initial consultation with a cardiologist. Id. ¶¶ 12-13, 15. The Utilization Review Committee denied the first request, and instructed the treating physician to obtain updated chest x-rays and follow-up with Mr. Crowder. Id. ¶ 14. The Utilization Review Committee also denied the second request because no objective abnormalities allegedly were found, and instructed the treating physician to obtain an echocardiogram, continue monitoring Mr. Crowder, and reassess his condition. Id. ¶ 16.

         On April 25, 2017, after additional testing and monitoring, Dr. Pillai submitted two new Utilization Review Committee Requests. Id. ¶ 17. The requests sought initial consultative examinations for Mr. Crowder with a cardiologist and a pulmonologist within two months of the request. Id. ¶¶ 18-19. The Utilization Review Committee granted these requests. As a result, on June 12, 2017, a pulmonologist examined Mr. Crowder and, on June 14, 2017, a cardiologist examined him. Id. ¶¶ 20, 22.

         The pulmonologist recommended a spirometry^[3] with total lung volumes and diffusion capacity.^[4] Id. ¶ 21. If Mr. Crowder’s pulmonary function test was normal, the pulmonologist would recommend him having a cardiac workup to determine whether his dyspnea^[5] had a cardiac cause. Id. The cardiologist recommended an echocardiogram and a nuclear stress test. Id. ¶ 21. On June 20, 2017, the Utilization Review Committee approved the additional tests. Id. ¶ 24.

         On July 31, 2017, Dr. Pillai performed another examination of Mr. Crowder, noted common back pain, and recommended that Mr. Crowder continue performing lower back exercise and taking simple analgesics. . Id. ¶ 25. Mr. Crowder alleges that he has a degenerative disc disease and did not have common back pain. Plaintiff’s Statement of Disputed Facts, ECF No. 62 ¶ 25 (Mar. 7, 2019) (“Pl.’s SDF”).

         On August 22, 2017, both tests recommended by the cardiologist were performed. Defs.’ SMF ¶¶ 26-27. Mr. Crowder’s echocardiogram results were in the normal range and did not indicate any abnormality that would require further monitoring or an additional consultation. Id. ¶ 26. The nuclear stress test revealed no evidence of myocardial ischemia^[6] on the myocardial perfusion imaging. No. reversible defects were identified on stress imaging. Id. ¶ 27. During the test, Mr. Crowder did not complain of chest pain or shortness of breath. Id.

         On August 29, 2017, the pulmonary function tests were conducted. Id. ¶ 28. Mr. Crowder’s lung volumes and diffusion capacity were normal. Id. There was no evidence of an obstruction or restriction. Id. The test results also did not disclose any abnormalities or conditions that warranted additional testing or follow-up consultations. Id. ¶ 29.

         2. Recreation Job

         During this same time period, Mr. Crowder worked at the gym at MacDougall-Walker Correctional Institution, where Mr. Alvarez served as his supervisor. Id. ¶ 39. As a supervisor, Mr. Alvarez had to account for all gym workers at all times. Id. ¶ 47. Gym workers had to report for work twice a day, Monday through Saturday, and once on Sunday. Id. ¶ 41. Workers reported for the first shift between 8:30 a.m. and 8:45 a.m. Id. ¶ 42. Inmates could use the gym from 8:45 a.m. until 9:45 a.m. Id. ¶ 43. When the inmates left the gym at 9:45 a.m., the gym workers had responsibility for cleaning it. Id. ¶ 44.

         In early 2015, Mr. Crowder allegedly began leaving the gym at 9:45 a.m. without permission. Id. ¶ 45. Other inmates allegedly complained to Mr. Alvarez that Mr. Crowder was leaving without helping them complete the work. Id. ¶ 46. Mr. Alvarez allegedly spoke with Mr. Crowder and told him to stop leaving the gym without permission, id. ¶ 48, which was Mr. Crowder’s first verbal warning. Id. ¶ 49. When Mr. Crowder allegedly continued to leave the gym without permission, Mr. Alvarez issued a second verbal warning. Id.

         Leaving the gym without permission is considered disobeying a direct order and allegedly could endanger institutional safety and security. Id. ¶¶ 50-51. Rather than issuing a disciplinary report, Mr. Alvarez allegedly asked Mr. Crowder about his unauthorized departures from the gym. Id. ¶ 53. Mr. Crowder said he was going to the medical unit. Id. ¶ 54. Mr. Alvarez does not recall whether, in accordance with customary practice, Mr. Crowder had permission to leave the gym and go to the medical unit but states that, if Mr. Crowder had a pass, he would have permitted Mr. Crowder to go to the medical unit. Id. ¶¶ 55-56. Mr. Alvarez contends that Mr. Crowder’s medication was administered once a week, but he was leaving the gym three times a week. Id. ¶¶ 57-58. Mr. Crowder’s medication allegedly did need to be administered at the same time each week. Id. ¶ 72.

         Mr. Crowder disputes all of Mr. Alvarez’s statements and submits copies of medical passes issued to him in October 2016 and February 2019. Pl.’s SDF ¶¶ 40-66; see also Plaintiff’s Opposition to Summary Judgment: Exhibit A, ECF No. 62 at 33 (Mar. 7, 2019) (“Pl.’s Ex. A”).

         B. Procedural History

         On July 10, 2017, Mr. Crowder sued Dr. Farinella, Dr. Freston, Dr. Naqvi, Dr. Ruiz, Raquel Lightner, C.C. Moore, Heidi Greene and Rudi Alvarez under 42 U.S.C. § 1983 for alleged violations of his civil and constitutional rights. Complaint, ECF No. 1 ¶ 6 (July 10, 2017) (“Compl.”).

         Specifically, Mr. Crowder alleged that (1) Raquel Lightner, the Utilization Review Committee Health Service Administrator, and Heidi Greene, the Nurse Supervisor, refused to provide him with adequate medical treatment, Compl. ¶ 2; (2) C.C. Moore, the Freedom of Information Liaison, denied him access to the names of the Utilization Review Committee members, id. ¶¶ 3, 50–52; (3) Dr. Ruiz, Dr. Farinella, Dr. Freston and Dr. Naqvi, as employees of the Utilization Review Committee, were deliberately indifferent towards Mr. Crowder’s requests for pulmonary examinations, id. ¶¶ 6–9, 23, 34; and (4) Mr. Alvarez, the recreation supervisor, interfered with and showed deliberate indifference to his medical needs, id. ¶¶ 54–76. Mr. Crowder alleged that these actions violated his rights under the Eighth Amendment. Id. ¶ 79.

         Mr. Crowder also moved for leave to proceed in forma pauperis. Motion for Leave to Proceed in forma pauperis, ECF No. 2 (July 10, 2017). On July 18, 2017, Magistrate Judge William Garfinkel granted that motion. Order, ECF No. 8 (July 18, 2017).

         On August 7, 2017, the Court reviewed the complaint under 28 U.S.C. 1915A(b)(1) and dismissed the claims against Ms. Lightner, Ms. Greene and Mr. Moore, without prejudice, because (1) Mr. Crowder failed to allege facts suggesting Ms. Greene provided him with improper care or was aware that others had done so; (2) Ms. Lightner was not responsible for providing Mr. Crowder medical care and therefore would not be the person to make entries into Mr. Crowder’s medical chart regarding his symptoms or treatment; and (3) Mr. Crowder failed to allege facts suggesting that Mr. Moore interfered with his ability to seek medical treatment. Initial Review Order, ECF No. 9 (Aug. 7, 2017).

         The Court allowed the case to proceed on the deliberate indifference to medical needs claims against Dr. Farinella, Dr. Freston, Dr. Naqvi, Dr. Ruiz, and Mr. Alvarez, as well as the equal protection claim against Mr. Alvarez. Id.

         On September 22, 2017, Mr. Crowder moved for the appointment of pro bono counsel to represent him in this case. Motion to Appoint Counsel, ECF No. 17 (Sept. 22, 2017).

         On October 17, 2017, Mr. Crowder moved for leave to file an Amended Complaint. Motion to Amend Complaint, ECF No. 18 (Oct. 17, 2017).

         On November 28, 2017, the Court denied the motion to appoint counsel, without prejudice. Order, ECF No. 21 (Nov. 28, 2017). The Court explained that Mr. Crowder had not demonstrated that he was unable to obtain counsel and that appointment was not warranted at the time. Id. at 2.

         That same day, the Court granted the motion to amend, explaining that “[a]s the defendants have not yet responded to the Complaint… Mr. Crowder may amend his Complaint once as of right.” Ruling on Motion to Amend Complaint, ECF No. 22 (Nov. 28, 2017).

         The Court therefore directed the Clerk to docket the Amended Complaint. It noted that while Mr. Crowder had supplemented his allegations regarding medical care and withdrawn his claim against Ms. Greene, he had reasserted his claims against Ms. Lightner and Mr. Moore without alleging “new facts that would alter the analysis in the Initial Review Order.” Id. at 1.

         Accordingly, the Court found that the “claims against Ms. Lightner and Mr. Moore . . . remain dismissed for the reasons stated in the Initial Review Order.” Id.

         On November 29, 2017, the Clerk of the Court docketed Mr. Crowder’s Amended Complaint, ECF No. 23 (Nov. 29, 2017) (“Am. Compl.”).

         On December 4, 2017, Mr. Crowder moved for an “immediate injunction, ” asking that he be treated immediately for his breathing issue. Motion for Injunction, ECF No. 24 (Dec. 4, 2017). Mr. Crowder alleged that while a recent pulmonary function test supposedly showed no abnormalities, he was still having difficulty ...