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McDermid v. Garza

United States District Court, D. Colorado

March 9, 2015

DAVID McDERMID, Plaintiff,


CRAIG B. SHAFFER, Magistrate Judge.

This case is before this court pursuant to the Order of Reference entered on July 17, 2014 (Doc. # 45), and the parties' unanimous consent to disposition of this action by a United States Magistrate Judge. Defendant Renee D. Grimes-Boorman filed her Motion to Dismiss (Doc. # 46) on August 11, 2014. David McDermid filed a response[1] (Doc. # 54) on January 5, 2015, and Defendant Grimes-Boorman submitted her reply (Doc. # 55) on January 15, 2015. This court has carefully considered these filings, the court file, and the applicable case law.


On November 22, 2013, Mr. McDermid initiated this action with the filing of a pro se Prisoner Complaint, pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Mr. McDermid filed an amended complaint on December 23, 2013. On January 1, 2014, Magistrate Judge Boyd Boland directed Mr. McDermid to file a second amended complaint. Judge Boland concluded that the amended complaint did not comply with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure because - despite naming seven individual defendants - the allegations in Mr. McDermid's amended complaint only implicated one of those defendants. Thereafter, Mr. McDermid filed a second amended complaint alleging claims against three defendants: Heriberto Garza, Renee D. Grimes-Boorman, and Michael Hudson[2]. Defendants Grimes-Boorman and Hudson filed a motion to dismiss on June 9, 2014, asserting that Mr. McDermid had failed to state a claim for relief against either of them. Rather than responding to the motion to dismiss, Mr. McDermid sought, and was granted, permission to file another amended complaint.

In his Third Amended Complaint, filed on July 16, 2014, Mr. McDermid asserts violations of his Eighth Amendment right against cruel and unusual punishment against Defendant Garza and Defendant Grimes-Boorman. (Doc. # 43). Specifically, in his first claim for relief, Mr. McDermid asserts that he is diabetic and requires prescription insulin shots in order for his body to convert food into energy. On September 27, 2012, Defendant Garza allegedly reduced Mr. McDermid's insulin prescription "to the point that [he] started starving." Mr. McDermid alleges that he informed Defendant Garza that he was losing weight and that "the reduced insulin [would] cause [him] to lose weight faster." Mr. McDermid contends that, as a result of Defendant Garza's actions, he developed a perforated ulcer. Defendant Garza, however, has not been served with a copy of this complaint or any of the previous complaints. Consequently, he is not a party to the action.

In his second claim for relief, Mr. McDermid alleges that Defendant Grimes-Boorman denied giving him insulin on a number of occasions. He lists ten dates on which he allegedly did not receive insulin and states that "most of those times were due to Defendant Grimes-Boorman." He also alleges that when Defendant Grimes-Boorman administers his shots, she replaces the insulin with air. He asserts that when he does not "get insulin, [his] body produces ketones, which by information and belief is an acid that damages the body." Mr. McDermid further alleges that on one occasion, Defendant Grimes-Boorman accused him of hiding food and that "she seemed quite aggressive on the job." Mr. Mc Dermid seeks an award of compensatory and punitive damages, and a declaration that the defendants' actions violated his rights under the Constitution.

Defendant Grimes-Boorman has moved to dismiss Plaintiff's Third Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6), arguing that Mr. McDermid has failed to state a claim under the Eighth Amendment and that his claims are barred by the doctrine of qualified immunity.


A. Motions to Dismiss

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." See Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must "accept as true all well-pleaded factual allegations... and view these allegations in the light most favorable to the plaintiff." Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The court is not, however, "bound to accept as true a legal conclusion couched as a factual allegation." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In addition, this court may consider exhibits attached to the complaint without converting the motion into one for summary judgment pursuant to Rule 56. See Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991).

To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. A claim is plausible when the plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This standard requires more than the sheer possibility that a defendant has acted unlawfully. Id. Facts that are "merely consistent" with a defendant's liability are insufficient. Id. "[T]o state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant's actions harmed him or her; and what specific legal right the plaintiff believes the defendant violated." Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). The ultimate duty of the court is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

Because Mr. McDermid is not an attorney, his pleadings and other papers have been construed liberally and held to a less stringent standard than formal pleadings drafted by a lawyer. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (19972)). Therefore, "if the court can reasonably read the pleadings to state a claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper authority, his confusion of legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Id. However, this court cannot act as a pro se litigant's advocate. Id. It is the responsibility of the pro se plaintiff to provide a simple and concise statement of his claims and the specific conduct that gives rise to each asserted claim. See Willis v. MCI Telecomms., 3 F.Supp.2d 673, 675 (E.D. N.C. 1998). This court may not "supply additional factual allegations to round out a plaintiff's complaint." Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). Nor may a plaintiff defeat a motion to dismiss by alluding to facts that have not been alleged, or by suggesting violations that have not been plead. Associated General Contractors of California Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).

B. Qualified Immunity

Defendant Grimes-Boorman has raised the qualified immunity defense as to the single claim asserted against her. Qualified immunity shields "government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation omitted). Qualified immunity is "immunity from suit rather than a mere defense to liability [and] it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Whether defendants are entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007).

In resolving a motion to dismiss based on qualified immunity, this court must consider "whether the facts that a plaintiff has alleged... make out a violation of a constitutional right, " and "whether the right at issue was clearly established at the time of defendant's alleged misconduct." Pearson, 555 U.S. at 232. The plaintiff bears the burden of showing, with particularity, facts and law establishing the inference that the defendant violated a clearly established federal constitutional or statutory right. Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir. 1994). If the plaintiff fails to satisfy either prong, the defendant is entitled to qualified immunity. Pearson, 555 U.S. at 236. The court has the discretion to consider these prongs in any order it chooses. Leverington v. City of Colorado Springs, 643 F.3d 719, 732 (10th Cir. 2011).

As to the first prong, "[i]f no constitutional right would have been violated were the allegations established, " the inquiry is at an end. Saucier v. Katz, 533 U.S. 194, 201 (2001). The second prong - whether the right was clearly established - must be considered "in light of the specific context of the case, not as a broad general proposition." Id. An official's conduct "violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear' that every reasonable official would have understood that what he is doing is violating that right.'" Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). To be clearly established, "existing precedent must have placed the statutory or constitutional question beyond debate." Id.


A. Defendant Renee D. Grimes-Boorman

Careful review of Mr. McDermid's Third Amended Complaint and the attached exhibits demonstrates that he has failed to state a claim for relief against Defendant Grimes-Boorman. To state a cognizable Eighth Amendment claim for denial of medical care, a plaintiff must allege facts sufficient to show that jail officials were deliberately indifferent to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 105 (1976); Mata v. Saiz, 427 F.3d 745, 75 (10th Cir. 2005). To establish that inadequate medical treatment rises to the level of a constitutional violation, a plaintiff must satisfy a two-pronged inquiry.

First, the plaintiff must "produce objective evidence that the deprivation at issue was in fact sufficiently serious.'" Mata, 427 F.3d at 751 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). "[T]he question raised by the objective prong of the deliberate indifference test is whether the alleged harm... is sufficiently serious..., rather than whether the symptoms displayed to the prison employee are sufficiently serious." Id.

Second, the plaintiff must present evidence that the defendant had a "sufficiently culpable state of mind." Farmer, 511 U.S. at 834. As the Supreme Court, in Farmer, explained:

[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.

Id. at 837. See also Barrie v. Grand County, Utah, 119 F.3d 862, 869 (10th Cir. 1997). "To be guilty of deliberate indifference, the defendant must know that he is creating a substantial risk of bodily harm." Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (internal quotation marks and citation omitted). Under this second prong, an assertion of mere negligence or even medical malpractice does not give rise to a constitutional violation. Perkins v. Kansas Dept. of Corr., 165 F.3d 803, 811 (10th Cir. 1999). Further, a prisoner's disagreement with medical personnel over the course of his treatment does not make out a cause of action. Id.

Here, taking all of Mr. McDermid's allegations as true, it is apparent that he is not entitled to the relief that he seeks in this lawsuit. As a preliminary matter, Mr. McDermid's complaint lacks specific factual allegations to support his claim and, accordingly, is subject to dismissal under Twombly and Iqbal. In his complaint, he alleges that Defendant Grimes-Boorman denied giving him insulin "many times." He then lists ten days on which he allegedly did not get insulin, and states that "most" of those times were due to Defendant Grimes-Boorman. He further alleges that Defendant Grimes-Boorman "usually" holds the syringe in such a manner that she replaces the prescribed insulin with air. These generalized, vague allegations, standing alone, do not plausibly show that the defendant engaged in any specific conduct on any specific occasion. Therefore, Mr. McDermid's allegations fall short of the specificity required to plausibly support a claim of deliberate indifference to a medical need in violation of the Eighth Amendment.

Moreover, even if this was not true, Mr. McDermid's allegations fail to satisfy either prong of the deliberate indifference inquiry. As to the first component of his Eighth Amendment claim, Mr. McDermid urges this court to focus on his diabetes diagnosis as the serious medical need. Although there is little doubt that diabetes can constitute a serious medical need, Mr. McDermid does not allege that he was generally denied treatment for his diabetes. Rather, his complaint challenges Defendant Grimes-Boorman's alleged failure to provide him with insulin on several, unspecified, occasions over the course of 18 months. Thus, this case is conceptually different from an ordinary denial of medical care case, because Mr. McDermid's claim is based on short-term interruptions or delays in the treatment that he was receiving for his underlying medical condition. See Bender v. Reiger, 385 F.3d 1133, 1137 (8th Cir. 2004) ("[T]he Eighth Amendment issue is not whether the infection itself is a "serious medical need, " but rather whether [plaintiff] had a serious medical need for prompt interferon treatment."); Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003) (concluding that Plaintiff had alleged a delay in his treatment for HIV where his claim was based upon short-term interruptions in otherwise adequate treatment).

"When the basis for a prisoner's Eighth Amendment claim is a temporary delay or interruption in the provision of otherwise adequate medical treatment, it is appropriate to focus on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone" in determining whether the alleged deprivation was sufficiently serious. Smith, 316 F.3d at 185. A delay or interruption in medical care "only constitutes an Eighth Amendment violation where the plaintiff can show that the delay resulted in substantial harm." Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2007).

Accordingly, the issue here is whether the alleged periodic interruptions in Mr. McDermid's insulin treatment resulted in substantial harm. Sealock, 218 F.3d at 1210; see also Graham v. Wright, 2004 WL 1794503 (S.D.N.Y. Aug. 10, 2004) (In case where prisoner complained of delay in providing treatment for Hepatitis C, the court held that the objective element of deliberate indifference standard must be satisfied by "harm that resulted from the delay."). A close reading of Mr. McDermid's complaint shows that he has not alleged that - as a result of the interruptions in treatment - he suffered any injury that would constitute substantial harm. Although he alleges that the denial of insulin results in the production of ketones[3], he fails to make any connection between the specific interruptions and this harm. Mr. McDermid has not stated what his ketone levels were on the days he was allegedly denied insulin. And the urinalysis test result sheet, attached to his complaint as Exhibit 2B, only show ketone levels from December 24, 2013, which apparently is not a date on which Defendant Grimes-Boorman denied Mr. McDermid his insulin. Furthermore, Mr. McDermid has not alleged what specific harm he suffered as a result of the ketones. His bare and conclusory allegation that "enough ketones can be life threatening" does not demonstrate any injury, let alone an injury that could be considered substantial.[4]

Similarly, Mr. McDermid alleges that "when [he] did not get insulin, [his] blood glucose rises... and often goes over 400, which is considered a critical high reading." He then states, without more, that high glucose "causes permanent damage to the body." However, Mr. McDermid has not alleged what his glucose levels were on the days he was denied insulin. His glucose test results, attached to the complaint as Exhibit 2A, are also from a date unrelated to any of the days he was denied insulin. And he offers no specifics on what damage he has suffered as a result of his rising glucose levels.

To the extent that Mr. McDermid attempts to allege new injuries (kidney damage and peripheral neuropathy) in his Response, the court does not consider them. In a Rule 12(b)(6) motion to dismiss, the court has the discretion to consider matters outside the complaint. Lowe, 143 F.3d at 1381. However, when it does so, it must treat the motion to dismiss as a motion for summary judgment. See Fed.R.Civ.P. 12(d). "Factual allegations contained in legal briefs or memoranda are [] treated as matters outside the pleadings for purposes of Rule 12(b)." Fonte v. Bd. of Managers of Cont'l Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988) (citing United Steelworks of Am., AFL-CIO v. Am. Int'l Aluminum Corp., 334 F.2d 147, 149 (5th Cir. 1964)). Here, the court declines to consider these new allegations. Therefore, the court concludes that Mr. McDermid's Eighth Amendment claim fails on the first component of the deliberate indifference standard, and may be dismissed on this basis alone.

Even if Mr. McDermid alleged the requisite substantial harm, he has not met the subjective component of the deliberate indifference standard. To prevail on the subjective prong, a prisoner must show that the defendant "knew he faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures to abate it." Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006) (internal citation and quotation marks omitted).

Here, Mr. McDermid has not alleged any facts demonstrating that Defendant Grimes-Boorman knew he faced a substantial risk of harm. Although he generally alleges that Defendant Grimes-Boorman knew he had been prescribed insulin, there are no factual allegations regarding her state of mind at the time of the specific denials. Nor does his complaint contain any allegations to suggest that Defendant Grimes-Boorman was aware of any risk related to the periodic denials of insulin. To the extent that Mr. McDermid relies on allegations from previous versions of his complaint to support the subjective prong, the court has not considered those allegations. "It is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect." Davis v. TXO Prod. Corp., 929 F.2d 1515, 1517 (10th Cir. 1991).

The only indication regarding Defendant Grimes-Boorman's state of mind is Mr. McDermid's allegation that - on at least one occasion - Defendant Grimes-Boorman apparently denied Mr. McDermid insulin because he had not eaten. A review of the exhibits attached to the complaint shows that Mr. McDermid has strong opinions on how much insulin he should be given and when. However, factual allegations showing a mere difference of opinion as to the proper course of treatment do not state a constitutional violation. Perkins, 165 F.3d at 811. Mr. McDermid's disagreement - with the defendant's decision to deny him insulin because he had not eaten - amounts to, at most, an allegation of medical malpractice, which is not actionable under the Eighth Amendment. See Estelle, 429 U.S. at 106 ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."). And Mr. McDermid's allegation that Defendant Grimes-Boorman's actions were "personal" is, without more, conclusory and insufficient to carry his burden. Therefore, Mr. McDermid has not sufficiently alleged that Defendant Grimes-Boorman acted with a culpable state of mind.

Because Mr. McDermid has failed to satisfy either prong of the analysis, the Court concludes that he has failed to state a claim that Defendant Grimes-Boorman was deliberately indifferent to a serious medical need in violation of the Eighth Amendment.

B. Defendant Heriberto Garza

Mr. McDermid alleges that Defendant Garza violated his Eighth Amendment rights by reducing his insulin dosage, which ultimately resulted in a perforated ulcer. The Third Amended Complaint was filed over seven months ago on July 16, 2014; however, Mr. McDermid has not served Defendant Garza with this pleading.

Rule 4(m) of the Federal Rules of Civil Procedure provides in relevant part:

If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against the defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).

Fed. R. Civ. P. 4(m). In addition, Local Rule 41.1 provides:

A judicial officer may issue an order to show cause why a case should not be dismissed for failure to prosecute for failure to comply with these rules, the Federal Rules of Civil Procedure, or court order. If good cause is not shown, a district court or magistrate judge exercising consent jurisdiction may enter an order of dismissal with or without prejudice.

D.C.COLO.LCivR 41.1.

Mr. McDermid was informed during the July 16, 2014 status conference that Defendant Garza would not be a part of the case unless and until he was served with the complaint. Because Mr. McDermid has not offered any explanation as to why he has failed to serve this defendant, his claim against Defendant Garza is dismissed without prejudice.


In view of the foregoing analysis, Defendant Grimes-Boorman's Motion to Dismiss (Doc. # 46) is GRANTED. It is further ordered that Plaintiff's claim against Defendant Garza is hereby DISMISSED WITHOUT PREJUDICE pursuant to Fed.R.Civ.P. 4(m) for failure to prosecute. No claims or Defendants remaining, this civil action is dismissed in its entirety.

Attorneys and Law Firms

Frank Graham, Bare Hill Correctional Facility, Malone, New York, Plaintiff, pro se.

Kevin P. McCaffrey, Assistant Attorney General, State of New York, New York, New York, for Defendants.



*1 Plaintiff Frank Graham ("plaintiff' or "Graham"), an inmate currently incarcerated at Bare Hill Correctional Facility in Malone, New York, was diagnosed with hepatitis C on March 12, 2001. Following that diagnosis, plaintiff brought suit pro se pursuant to 42 U.S.C. § 1983 against the Department of Correctional Services ("DOCS") and various prison administrators and physicians in their official and individual capacities claiming that the defendants failed to diagnose and treat his condition in a timely manner. We affirmed in the main the Report and Recommendation of Magistrate Judge Pitman on September 12, 2003, thereby dismissing plaintiffs claims for various injunctive relief and certain monetary damages against prison administrators and physicians in their official capacities for failure to state a claim.[1] See Graham v. Wright, No. 01 Civ. 9613(NRB), 2003 WL 22126764 (S.D.N.Y. Sept. 12, 2003). Additionally, Magistrate Judge Pitman's recommendation to deny defendants' motion to dismiss plaintiff's claim for monetary damages against Drs. Graceffo, Matthews, Milicevic, Lancellotti, and Makram in their individual capacities was adopted. See id. These five defendant physicians now move for summary judgment, arguing that the plaintiff has failed to establish a basis upon which they could be found to have been deliberately indifferent to the plaintiffs medical needs.


The following facts are not in dispute, except where noted.[2]

A. Hepatitis C

Hepatitis C is a liver disease caused by the hepatitis C virus. See Lebovics Decl. ¶ 5.[3] Eighty-five percent of people infected with the hepatitis C virus develop chronic hepatitis C, which slowly damages the liver and can cause cirrhosis of the liver, end-stage liver disease, and liver cancer. See id. The virus was first identified in 1988, [4] see id. at ¶ 28, and the FDA approved the first test to detect it in 1990. See Graceffo Decl. ¶ 10. At least six genotypes of the hepatitis C virus have been identified. Genotype 1 is the most common in the United States. See Lebovics Decl. ¶ 13.

Treatment of hepatitis C has evolved since the early nineties as doctors have come to understand better the risk that hepatitis C can cause serious liver damage and have developed more successful medications. See Lebovics Decl. ¶ 28. The first hepatitis C treatment, called interferon, was approved by the federal Food and Drug Administration in 1992. See Graceffo Decl. ¶ 12; Lebovics Decl. ¶ 15. Physicians began treating hepatitis C with a combination of interferon and ribavirin in 1998, and in 2002 the FDA approved a new form of interferon called pegylated interferon that remains in a patient's body longer than ordinary interferon. See Whalen Decl. ¶ 9. Pegylated interferon is now used in combination with ribavirin to treat hepatitis C. See id.

The chance of success with any hepatitis C treatment depends on the genotype of the virus infecting the patient and the patient's viral load. In patients with both genotype 1 and a high viral load, treatment with interferon alone, used between 1992 and 1998, was successful only five percent of the time. See Lebovics Decl. ¶ 14. The development of pegylated interferon used in combination with ribavirin has increased the success rate to roughly 30 percent. See id. at ¶ 15.

B. Plaintiffs Illness

*2 When hepatitis Cdamages liver cells, abnormally large amounts of enzymes, known as SGOT[5] and SGPT, [6] are released from those cells into the blood stream. See Graceffo Decl. ¶¶ 21-23. The first record of elevated levels of SGOT or SGPT in plaintiffs blood appears in a report from February 1983. See Pl.'s Objection to Mot. for Summ. J., Ex. A. Blood tests in September and November 1990 also revealed high levels of these enzymes. See Pl.'s Objection to Mot. for Summ. J., Ex. C; Decl. in Supp. of Summ. J., Ex. F, 00279. In 1990 Graham was under the care of defendants Graceffo and Matthews. Three subsequent tests performed between January and August 1991 continued to show that plaintiff's levels of these enzymes were approximately one and a half to two times normal levels. See Decl. in Supp. of Summ. J., Ex. F, 00283, 00286-87. At that time, physicians did not typically test for hepatitis C or other liver diseases unless enzyme levels were consistently four times the normal range. See Graceffo Decl. ¶ 30.

In 1991, there was a tuberculosis outbreak at Auburn Correctional Facility, where plaintiff was incarcerated at the time. Since plaintiff had tested positive for exposure to tuberculosis in 1987, Graceffo prescribed isoniazid for him as a precautionary measure. Plaintiffs medical file indicates he began receiving isoniazid in August 1991. See Decl. in Supp. of Summ. J., Ex. F, 00340. Isoniazid was known to cause liver damage, and if a patient's liver enzyme levels increased to four to five times normal levels, treatment with isoniazid was stopped. See Graceffo Decl. ¶¶ 17-20. Three further blood tests in November and December 1991 and April 1992, respectively, revealed that plaintiffs liver enzymes were one and a half to three times as high as normal levels. See Decl. in Supp. of Summ. J., Ex. F, 00386, 00413-14. Graham stopped taking isoniazid in November 1992. See id. at 00340; Graceffo Decl. ¶ 27. Plaintiff was never tested for hepatitis C while he resided at Auburn in the care of Graceffo and Matthews.

Plaintiff was transferred to Eastern Correctional Facility in October 1993. See Decl. in Supp. of Summ. J., Ex. C. During his time there, defendant Dr. Milicevic was in charge of his care. Only one blood test was performed on him in the nearly five years he spent at Eastern. This test, in February 1998, showed the plaintiffs SGOT level to be 69, above the normal range of 0-40. See Decl. in Supp. of Summ. J., Ex. F, p. 00161. He was not tested for hepatitis C while at Eastern.

In September 1998 plaintiff was transferred to Woodbourne Correctional Facility, see Decl. in Supp. of Summ. J., Ex. C, and another blood test was taken in July 2000. This test showed his levels of both SGOT and SGPT to be nearly twice as high as normal. See Decl. in Supp. of Summ. J., Ex. F, p. 00172. Citing the plaintiffs high SGPT level, defendant Lancellotti ordered a hepatitis C test for plaintiff on December 28, 2000. See Decl. in Supp. of Summ. J., Ex. F, p. 00477.

*3 After the test, plaintiff was diagnosed with hepatitis C on March 12, 2001. He is afflicted with genotype 1 of the virus and has a high viral load. See Lebovics Decl. ¶ 23. Plaintiff contends that defendant Makram initially chose not to treat him because, in her opinion, he was in no present danger from the disease and the side effects would be too severe. Pl.'s Compl. ¶ 16. The plaintiffs medical records show, however, that it was the plaintiff who decided not to pursue treatment after Makram explained to him the potential risks and benefits of the medications then available. See Makram Decl. ¶ 13; Decl. in Supp. of Summ. J., Ex. F, 00479.

Plaintiffs medical records further indicate that on July 30, 2001 he changed his mind and informed Dr. Makram that he wished to be considered for treatment. See Makram Decl. ¶ 15; Decl. in Supp. of Summ. J., Ex. F, 00486-87. Subsequently, Makram ordered additional tests and an evaluation of plaintiffs medical file to determine if he was a suitable candidate for medication. See Makram Decl. ¶ 16. On September 17, 2001, Dr. Makram referred plaintiff to a specialist in infectious diseases and gastroenterology who confirmed the hepatitis C diagnosis and recommended a liver biopsy to determine the extent of damage to plaintiffs liver. See id. at ¶¶ 17-18.A biopsy is necessary before hepatitis C treatment can begin. See id. at ¶ 23. The biopsy was performed on December 27, 2001, but the plaintiff was transferred out of Woodbourne Correctional Facility, and out of Dr. Makram's care, on January 3, 2002, see Decl. in Supp. of Summ. J., Ex. C, before Dr. Makram had an opportunity to review the biopsy. See Makram Decl. ¶¶ 20-24.

For reasons only partially explained in the record but unrelated to the defendants, see Whalen Decl. ¶¶ 7-12, after the plaintiffs transfer his treatment with pegylated interferon and ribavirin did not begin until February 26, 2003. See id. at ¶ 13. These medications were administered until August 7, 2003, at which point they were stopped because the plaintiffs disease was not responding to them and he was complaining about fatigue. See id. at ¶¶ 17.


I. Summary Judgment Standard

Summary judgment is properly granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law."Federal Rule of Civil Procedure 56(c). The Federal Rules of Civil Procedure mandate the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In reviewing the record, we must assess the evidence "in the light most favorable to the non-movant and... draw all reasonable inferences in his favor." Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir.1990). Because the plaintiff is pro se, we will construe his pleadings liberally. We emphasize that where reasonable, we have drawn inferences and resolved ambiguities in the manner most favorable to plaintiff. The mere existence, however, of an alleged factual dispute between the parties will not defeat a motion for summary judgment. Rather, the nonmoving party must affirmatively set forth facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). An issue is "genuine... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248 (internal quotation omitted).

II. Plaintiff's Deliberate Indifference Claims

*4 Plaintiff seeks monetary damages under 42 U.S.C. § 1983 for the defendants' alleged deliberate indifference to his medical needs in violation of the Eighth Amendment. To establish an Eighth Amendment violation for deliberate indifference, plaintiff must satisfy both an objective and a subjective element. See Smith v. Carpenter, 316 F.3d 178, 183 (2d Cir.2002). Objectively, the plaintiffs injury must be sufficiently serious to implicate the Eighth Amendment. See id. at 184 (holding that "[b]ecause society does not expect that prisoners will have unqualified access to health care, ' a prisoner must first make this threshold showing of serious illness or injury in order to state an Eighth Amendment claim for denial of medical care.") (quoting Hudson v. McMillan, 503 U.S. 1, 9 (1992)).

The inquiry into whether the objective element of a deliberate indifference claim is satisfied "must be tailored to the specific circumstances of each case." Id. at 185. In considering this element, courts focus on the risk of harm to the prisoner resulting from a lack of medical care. Id. at 186. See also Estelle, 429 U.S. at 106 (stating that "[i]n order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.") (emphasis added). Where an inmate alleges that prison officials refused to address his medical condition, the objective element is satisfied if the underlying condition is sufficiently serious. See id. at 185-186.

Where, however, an inmate only alleges that prison officials delayed in adequately treating his serious medical condition, "it is appropriate to focus on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone in analyzing whether the alleged deprivation is, in objective terms, sufficiently serious' to support an Eighth Amendment claim." Smith, 316 F.3d at 186 (quoting Chance, 143 F.3d at 702). A defendant's delay in treating an ordinarily insignificant medical condition can become a constitutional violation if the condition worsens and creates a "substantial risk of injury." Id. Conversely, delay in treating a life-threatening condition may not violate the Eighth Amendment if the lapse does not cause any further harm beyond that which would occur even with complete medical attention. See id.

The subjective requirement is met if the plaintiff demonstrates that the defendant had a sufficiently culpable state of mind to establish Eighth Amendment liability. A showing of negligence by the defendants is not enough for a deliberate indifference claim. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (stating that "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner"). A deliberately indifferent official "knows of and disregards an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 837 (1994).

A. The Objective Element of Plaintiffs Claims

*5 Defendants contend that their delay in testing plaintiff for hepatitis C did not harm him because his body's failure to respond to treatment in 2003 indicates that he would not have benefitted from earlier treatment, either.[7] Only thirty percent of patients, like Graham, who are afflicted with genotype 1 of the virus and high viral load respond to the most updated treatment protocol of pegylated interferon and ribavirin. Graham, unfortunately, was not within the thirty percent. For hepatitis C patients treated with interferon alone, there was only a five percent response rate. Defendants reason that a patient who did not respond to the treatment with a thirty percent success rate would have had virtually no chance of responding to the medication with a five percent rate of success. Accordingly, they argue, plaintiff cannot show that he was harmed by any delay in treatment. See Lebovics Decl. ¶¶ 25, 30 (declaring "with a high degree of medical confidence that the fact that plaintiff did not respond to therapy in 2003 demonstrates that he would not have responded to interferon therapy in 1992 nor interferon and ribavirin therapy in 1998.").

While there could be exceptions to Dr. Lebovics' conclusion, any failure by the defendants to diagnose Graham's disease earlier and thus begin his treatment sooner deprived him of no more than a five percent chance of response. Because there was no more than a five percent chance that plaintiff or any other patient would have responded to interferon alone, he cannot establish by a preponderance of the evidence that he would have benefitted from interferon treatment if it was provided at an earlier date. Thus, no rational jury could find that it is more likely than not that an event with a five percent chance of occurring would have happened in this instance. Consequently, the plaintiff cannot establish that he suffered the objective harm needed for a deliberate indifference claim.

Having concluded that Graham cannot show that he suffered the objective harm necessary for an Eighth Amendment claim, we need not reach the defendants' claims that plaintiff cannot satisfy the subjective element, either. In the alternative, however, this Court finds that the plaintiff has not produced sufficient evidence of the defendants' culpability from which a reasonable jury could find them guilty of deliberate indifference.

B. The Subjective Element of Plaintiff's Claims: Drs. Graceffo and Matthews

Graham claims that Graceffo's and Matthews' decisions not to order a hepatitis C test between 1990 and 1992, when blood tests consistently showed he had elevated levels of two liver enzymes, SGOT and SGPT, demonstrate their indifference to his health. Dr. Graceffo does not deny that blood tests indicated that plaintiffs liver enzymes were above the normal range during this time period, but he avers that Graham's enzyme levels did not rise to the point at which patients were typically tested for hepatitis C. See Graceffo Decl. ¶ 30. Plaintiffs SGOT and SGPT levels were never greater than three times normal, Id. at ¶ 31; Decl. in Supp. of Summ. J., Ex. F, 00286-87, 00386, 00413-14, and Graceffo's statement that the standard of care was to test for hepatitis C only if a patient's enzyme levels rose to four times normal levels is undisputed. Accordingly, as the plaintiff cannot show that Graceffo's and Matthews' decisions deviated from prevailing medical standards, there would be no basis for a jury to find that their failures to order a hepatitis C test support a claim of deliberate indifference.

C. The Subjective Element of Plaintiffs Claims: Dr. Milicevic

*6 Following plaintiffs transfer to Eastern Correctional Facility in 1993, his health was monitored by Dr. Milicevic. One blood test was conducted on the plaintiff during his stay at Eastern, from October 1993 through September 1998. This test, in February 1998, showed the plaintiffs SGOT level to be 69, above the normal range of 0-40. See Decl. in Supp. of Summ. J., Ex. F, p. 00161.

Plaintiff asserts that Dr. Milicevic's failure to test his blood more than once in nearly five years despite his prior history of elevated liver enzyme levels and her failure to order a hepatitis C test after his February 1998 blood test show that she was deliberately indifferent to his health. Plaintiffs blood tests, however, never showed that his enzyme levels rose to four times the normal range. Accordingly, we do not find that Milicevic knew of and disregarded an excessive risk to the plaintiff by failing to order a hepatitis C test. Even if we were to assume, arguendo, that Dr. Milicevic should have tested plaintiffs blood more frequently or ordered a hepatitis C test, we would find, for the reasons explained above, that plaintiff did not suffer any injury that could support an Eighth Amendment claim.

D. The Subjective Element of Plaintiffs Claims: Dr. Lancellotti

The fourth defendant, Dr. Lancellotti, ultimately ordered a hepatitis C test for Graham in December 2000 after reviewing plaintiffs medical records. Lancellotti Decl. ¶ 9. Plaintiff contends that Lancellotti could not have known to order a hepatitis C test unless he had been previously aware that plaintiff had hepatitis C. However, Dr. Lancellotti's notes from December 28, 2000 indicate that he ordered the test based on the plaintiffs high SGPT reading. See Decl. in Supp. of Summ. J., Ex. F, 00477. That July, a blood test had shown Graham's levels of both SGPT and SGOT to be above normal. See Decl. in Supp. of Summ. J., Ex. F, 00172. Plaintiffs allegation against Lancellotti lacks factual support, and if credited would essentially punish Dr. Lancellotti for ordering a hepatitis C test.

Graham also asserts that Dr. Lancellotti should have ordered a hepatitis C test immediately upon reviewing his medical file after Graham arrived at Woodbourne. Because the plaintiffs blood test did not show his enzyme levels reached the level at which the existing standard of care would have signaled defendants to order a hepatitis C test, it cannot be inferred that Dr. Lancellotti was deliberately indifferent to the plaintiff solely because he did not order a test after reviewing plaintiffs medical records.

E. The Subjective Element of Plaintiff's Claims: Dr. Makram

Plaintiff also asserts that Dr. Makram delayed in properly diagnosing and treating his hepatitis C. See Pl.'s Compl. ¶ 16. He claims that Dr. Makram ought to have realized he should be tested for hepatitis C upon reviewing his medical file containing records of his earlier blood tests following his transfer to Woodbourne. As explained above, however, the results of Graham's earlier blood tests never showed his enzyme levels had reached four times the normal range. Plaintiff offers no other evidence that Dr. Makram ought to have diagnosed his hepatitis C earlier and his claim that she refused to treat him is refuted by his medical records. See Decl. in Supp. of Summ. J., Ex. F, p. 00479. It will also be recalled that Dr. Makram referred plaintiff to a specialist who recommended a biopsy (which was done) prior to treatment. Accordingly, there is no basis for finding that Dr. Makram acted with indifference to the plaintiffs serious medical needs.[8]


*7 For the foregoing reasons, defendants' motion for summary judgment is granted.


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