Morales v. Fischer

46 F. Supp. 3d 239, 2014 U.S. Dist. LEXIS 134061, 2014 WL 4705108
CourtDistrict Court, W.D. New York
DecidedSeptember 22, 2014
DocketNo. 13-CV-6134 EAW
StatusPublished
Cited by15 cases

This text of 46 F. Supp. 3d 239 (Morales v. Fischer) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morales v. Fischer, 46 F. Supp. 3d 239, 2014 U.S. Dist. LEXIS 134061, 2014 WL 4705108 (W.D.N.Y. 2014).

Opinion

DECISION AND ORDER

ELIZABETH A. WOLFORD, District Judge.

I. INTRODUCTION

Plaintiff Edgar Morales (“Plaintiff’), appearing pro se, commenced this action under 42 U.S.C. § 1983. (Dkt. 1). Plaintiff, an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), alleges that his constitutional rights have been violated during his confinement at Wende Correctional Facility (“Wende”). Defendants, each an employee of DOCCS during the relevant time, have moved to dismiss Plaintiffs complaint pursuant to Fed. R.Civ.P. 12(b)(6), or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. (Dkt. 10).

[243]*243Plaintiff asserts a claim against Defendants under the Eighth and Fourteenth Amendments to the United States Constitution, alleging that Defendants have failed to provide him with adequate treatment for his liver and abdomen pain.1 The record shows, however, that Plaintiff has received medical treatment for his complaints, and there is no evidence that, to the extent that the individual Defendants have had any personal involvement in Plaintiffs treatment, their decisions in that regard have been based on anything other than their appropriate and professional medical judgment. As a result, summary judgment is warranted in favor of Defendants.

II. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is currently confined at Wende, and was so confined during the relevant time period. (Dkt. 1 at ¶ 3).

During the relevant time period, Brian Fischer was the Commissioner of DOCCS; Carl J. Koenigsmann was the Deputy Commissioner and Chief Medical Officer of DOCCS; Dale Artus was the Superintendent of Wende; Roslyn Killinger was the Deputy Superintendent for Health Services at Wende; and Hope Obertean was a Nurse Practitioner at Wende. (Dkt. 10-3 at 1-2). Defendant Jacqueline Levitt is a medical doctor licensed to practice medicine in New York State. (Dkt. 10-4 at ¶¶ 1-3). Dr. Levitt is employed as a doctor for DOCCS, and was assigned to the Wende facility during the relevant time period. (Id. at ¶¶ 3-4).

While incarcerated at Riker’s Island under the alias Edwardo Gonzales, Plaintiff was treated with the medication chemopro-phylaxis for approximately one month in late 2009, after Plaintiff tested positive for tuberculosis. (Dkt. 10^4 at ¶ 8; Dkt. 12 at 3-5). In January 2010, Plaintiff, then using his current alias Edgar Morales, tested positive for tuberculosis while housed at Downstate Correctional Facility. (Dkt. 1 at ¶ 18; Dkt. 10-4 at ¶ 9; Dkt. 12 at 7, 9). A skin test registering over 5 mm indicates that treatment is necessary in a prison situation. (Dkt. 10-4 at ¶ 13). Plaintiffs skin test registered positive for tuberculosis at 20 mm. (Id. at ¶ 13). Accordingly, prison officials resumed Plaintiffs chemo-prophylaxis treatment on January 15, 2010. (Dkt. 10-4 at ¶ 14; Dkt. 12 at 9,11).

Plaintiff was transferred to Wende on February 8, 2010. (Dkt. 10^1 at ¶ 16). At some time thereafter, Plaintiff alleges he was prescribed the medications Sucralfate, Docusate Sodium, and Omeprazole. (Dkt. 1 at ¶ 19). Plaintiff claims that within seven days of starting the medications, he began experiencing “extreme pain and discomfort in his abdomen.” (Id. at ¶ 20). On February 23, 2010, Plaintiff began to complain of “indigestion.” (Dkt. 10-4 at ¶ 17; Dkt. 12 at 29-45). Over time, Plaintiff complained of, inter alia, right-sided abdominal pain, left-sided abdominal pain, [244]*244food intolerance, and difficulty swallowing. (Dkt. 10-4 at ¶ 19; Dkt. 12 at 29-45).

During one appointment with Plaintiffs primary care provider Dr. Levitt, Plaintiff claims that he informed Dr. Levitt of “chronic .and severe discomfort on the right side of his abdomen, sharp pains in his liver, as well as heartburn and nausea,” after which Dr. Levitt gave Plaintiff medication for an upset stomach and placed Plaintiff on a controlled diet. (Dkt. 1 at ¶ 21).

According to Plaintiff, between August 20, 2010, and February 22, 2011, he reported to Emergency Sick-Call at least 39 times to complain of liver and abdomen pain, only to be told to continue on his medications. {Id. at ¶ 22). Plaintiff claims that he was admitted to the facility infirmary on at least two occasions because his pain had “become disabling.” {Id.).

Over the course of three and a half years, Plaintiff was seen by six different medical providers. (Dkt. 10-4 at ¶ 18). Plaintiff was also examined by two gas-troenterologist consultants on three separate consultations. (Dkt. 10-4 at ¶ 20; Dkt. 12 at 17, 23, 27). These consultants reported no significant findings or recommendations for further testing. (Dkt. 10-4 at ¶ 20; Dkt. 12 at 17, 23, 27). All liver function tests were within normal limits. (Dkt. 10-4 at ¶ 21).

Plaintiff received an upper endoscopy, a colonoscopy, and abdominal x-rays that were all negative for any condition that would produce Plaintiffs complaints. (Dkt. 10-4 at ¶ 22; Dkt. 12 at 15, 19, 25).

In March 2012, Plaintiff claims he wrote Defendant Koenigsmann to request a liver biopsy. (Dkt. 1 at ¶ 23). Plaintiff alleges that Defendant Koenigsmann declined Plaintiffs request in a letter dated April 19, 2012, stating that a liver biopsy was not medically necessary. {Id. at ¶24). According to Plaintiff, he has filed numerous complaints and letters with Defendants Fischer, Koenigsmann, Artus, and Killing-er. {Id. at ¶ 25).

Plaintiff is particularly concerned with a treatment note from September 2, 2010, associated with Plaintiffs abdominal ultrasound. (Dkt. 10-4; Dkt. 12 at 13). The note suggested a “[cjoarse appearing liver which may indicate cirrhotic change.” (Dkt. 12 at 13). That ultrasound was performed using a portable machine at the Wende facility. (Dkt. 10-4 at ¶ 23). On November 23, 2010, Plaintiff received a follow-up ultrasound at Erie County Medical Center. (Dkt. 10-4 at ¶ 24; Dkt. 12 at 21). The November 2010 ultrasound was “entirely normal, with no suggestion of cirrhosis.” (Dkt. 10-4 at ¶ 25; Dkt. 12 at 21). However, the November 2010 report notes a history of “+PPD recently treated, U.S. with cirrhosis of liver.” (Dkt. 20 at 15). Plaintiff argues that this note indicates that he has cirrhosis of the liver. {Id. at 4). Defendants explain that the report notes an ultrasound with a history of cirrhosis, but the fact that the November 2010 ultrasound and subsequent tests showed that Plaintiffs liver is unremarkable means that Plaintiff does not have cirrhosis of the liver. (Dkt. 19-1 at ¶¶ 26-39). Additionally, Defendants note that Plaintiff had an abdominal and pelvic CT examination on August 24, 2013, that confirmed Plaintiff does not have liver damage. (Dkt. 19-1 at ¶¶ 38, 53; Dkt. 20 at 7).

Plaintiff claims that he now suffers from “cirrhosis of [the] liver” as a result of the medication received following his positive tuberculosis test. (Dkt. 20 at 4). Plaintiff contests the diagnosis of tuberculosis and claims that he received medication that he did not need, which caused him to experience medical issues and pain. (Dkt. 1 at ¶31).

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Cite This Page — Counsel Stack

Bluebook (online)
46 F. Supp. 3d 239, 2014 U.S. Dist. LEXIS 134061, 2014 WL 4705108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morales-v-fischer-nywd-2014.