929 F.2d 922 (2nd Cir. 1991), 535, Kaminsky v. Rosenblum

Docket Nº:535, Docket 90-7587.
Citation:929 F.2d 922
Party Name:Sylvia KAMINSKY, as Administratrix of the Estate of Herbert Kaminsky, Plaintiff-Appellee, v. Saul ROSENBLUM, Raymond Broaddus, E. Michael Kalonick, Charles J. Scully, John Doe, Defendants, E. Michael Kalonick, Charles J. Scully, Defendants-Appellants.
Case Date:April 09, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 922

929 F.2d 922 (2nd Cir. 1991)

Sylvia KAMINSKY, as Administratrix of the Estate of Herbert

Kaminsky, Plaintiff-Appellee,


Saul ROSENBLUM, Raymond Broaddus, E. Michael Kalonick,

Charles J. Scully, John Doe, Defendants,

E. Michael Kalonick, Charles J. Scully, Defendants-Appellants.

No. 535, Docket 90-7587.

United States Court of Appeals, Second Circuit

April 9, 1991

Argued Nov. 28, 1990.

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Carol A. Cimkowski, Asst. Atty. Gen. of the State of N.Y. (Robert Abrams, Atty. Gen., New York City, of counsel), for defendants-appellants.

Mary Ann Doyle (Edwin G. Schallert, Gail S. Johnson, Debevoise & Plimpton, New York City, of counsel), for plaintiff-appellee.

Before OAKES, Chief Judge, and CARDAMONE and McLAUGHLIN, Circuit Judges.

CARDAMONE, Circuit Judge:

While he was an inmate of Green Haven, a maximum security prison operated by the New York State Department of Correctional Services, Herbert Kaminsky died. This litigation arises out of the events that led up to his death. His wife, Sylvia Kaminsky, instituted a civil rights action under 42 U.S.C. Sec. 1983 against state corrections officials alleging that they failed to provide her husband with the proper medical care while he was in their custody, and that such conduct violated the decedent's Eighth Amendment right to be free from the infliction of cruel and unusual punishment.

The essence of the appeal is whether defendant's actions were objectively reasonable. The decedent, as an inmate of a maximum security prison, was one against whose plight popular prejudice might be said to run. It is not our task to mirror this supposed bias, but rather to examine defendants' conduct in a disinterested manner, undistorted by defendants' personal subjective interpretation of their actions; that is, we must determine whether there are sufficient facts to pet at issue the objective reasonableness of defendants' actions.

The appeal before us is from an interlocutory order of the United States District Court for the Southern District of New York, Peter K. Leisure, Judge, that denied defendant E. Michael Kalonick's, Regional Health Services Administrator for the New York State Department of Correctional Services, and defendant Charles J. Scully's, Superintendent of Green Haven Correctional Facility, motion for summary judgment dismissing plaintiff's suit against them on the grounds of their qualified immunity.


The facts are set forth in Judge Leisure's thorough opinion, reported at 737 F.Supp. 1309 (S.D.N.Y.1990), with which we assume the reader's familiarity. We recount only those facts relevant to the appeal. After being sentenced to two consecutive two to four year prison terms on April 30, 1985, Kaminsky was originally assigned to the Downstate Correctional Facility. He was then suffering from a variety of ailments, including high blood pressure, diabetes, angina, gout, and an enlarged spleen. He was taking medication which had been prescribed for some of these conditions. Within several months Kaminsky was transferred to Green Haven and--with the exception of one month in late 1985 when he was confined in New Jersey awaiting disposition of a felony indictment there--he remained

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an inmate at Green Haven until his death on August 28, 1986.

During Kaminsky's incarceration, defendants served in the positions earlier noted. Kalonick described his responsibilities as Regional Health Administrator as "an adviser and resource person to the nurse administrators and physicians responsible for health care in individual facilities and I was also responsible for insuring the compliance with central office policies and procedures." Scully stated that as Superintendent he was the "[c]hief executive officer responsible for the safety and custody of all inmates" and was "responsible for [the inmates'] medical care as well as for their well being" at Green Haven.

It is undisputed that Kaminsky received frequent medical attention while in prison, making numerous trips to the Westchester County Medical Center and visiting medical personnel at Green Haven often. Nonetheless, plaintiff alleges many instances of deficient medical care during the first ten months of the decedent's incarceration in that facility: delay in providing him with prescribed medication and in responding to requests for medical treatment made by his family, his lawyers and Kaminsky himself, missed appointments, and failure to monitor his condition.

The most serious allegations concern the quality of care given Kaminsky in the last three months of his life. Decedent's wife asserts in her complaint that Kalonick and Scully were aware of Kaminsky's condition, the lack of care given him, and the complaints regarding it. The district court found that--apart from seeing a nurse on two occasions--there was a three-month gap in decedent's care from June 1986 until August 1986, despite evidence that he lost 58 pounds in the eight-month period from January to August 1986 and that his condition was deteriorating alarmingly.

Plaintiff further alleges that Kaminsky's personal physician, Dr. Wroblewski, recommended his immediate hospitalization after examining him on August 21, 1986; but it was not until five days later, on August 26, that he was admitted to Horton Memorial Hospital where a lung biopsy was performed to determine the cause of the severe congestion from which he was suffering. Shortly after completion of the biopsy, Kaminsky died. An autopsy revealed: cirrhosis of the liver, coronary disease, diabetes, and an enlarged spleen--all previously diagnosed either before or during his stay at Green Haven. Kaminsky also tested positive for the AIDS virus and was suffering from pneumocystis carinii pneumonia, an opportunistic infection associated with AIDS. He had not been diagnosed for either of these diseases prior to his death.

Sylvia Kaminsky's Sec. 1983 action alleges the quality of medical care her husband received was so inadequate as to constitute cruel and unusual punishment under the Eighth Amendment. Defendants Kalonick, Scully, and Dr. Saul Rosenblum, Medical Director and physician at Green Haven during Kaminsky's time there, moved for dismissal of the complaint or, in the alternative, summary judgment on, inter alia, qualified immunity grounds. The district court, treating the motion as one for summary judgment, denied it, finding that there were disputed factual issues regarding the quality of Kaminsky's care and the degree of appellants' involvement in it. 737 F.Supp. 1309 (S.D.N.Y.1990). Scully and Kalonick appeal from the district court's order denying their motion for summary judgment on qualified immunity grounds. Because we agree that outstanding unresolved factual issues are present, the appeal is one from a non-final order, which must be dismissed for lack of appellate jurisdiction.


I Doctrine of Qualified Immunity

The doctrine of qualified immunity evolved as a balance between the need, on one hand, to hold responsible public officials exercising their power in a wholly unjustified manner and, on the other hand, to shield officials responsibly attempting to perform their public duties in good faith from having to explain their actions to the satisfaction of a jury. See Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949) (L. Hand, Ch. J.), cert. denied, 339 U.S. 949, 70

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