Brock v. Wright, Docket No. 02-0042.

• Decision Date: 03 January 2003
• Docket Number: Docket No. 02-0042.
• Parties: Vincent A. BROCK, Plaintiff-Appellant, v. Lester WRIGHT, T.G. Eagan and James G. Berbary, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

315 F.3d 158

Vincent A. BROCK, Plaintiff-Appellant, v. Lester WRIGHT, T.G. Eagan and James G. Berbary, Defendants-Appellees.

Docket No. 02-0042.

United States Court of Appeals, Second Circuit.

Submitted: September 3, 2002.

Decided: January 3, 2003.

COPYRIGHT MATERIAL OMITTED

Vincent A. Brock, #97-B-2794, Collins Correctional Facility, Collins, NY, pro se.

Julie S. Mereson, Assistant Solicitor General, for Eliot Spitzer, Attorney General of the State of New York, (Peter H. Schiff, Senior Counsel, of counsel) Albany, NY, for Defendants-Appellees.

Before: CALABRESI, B.D. PARKER, Circuit Judges, and STEIN, District Judge.^*

CALABRESI, Circuit Judge.

Plaintiff-Appellant, Vincent Brock, is an inmate in the custody of the New York Department of Corrections ("DOCS"). In December 1998, Brock suffered a deep laceration to his right cheek when another inmate slashed his face with a knife. Brock received prompt and, by all accounts, adequate medical care for the wound itself. But he alleges that the wound has led to a painful and disfiguring keloid and that various DOCS employees have wrongfully, and in violation of the Eighth Amendment, prevented him from obtaining the care of a dermatologist.

Brock brought suit under 42 U.S.C. § 1983. The district court (Schroeder, M.J., Western District of New York)¹ granted summary judgment to the defendants on the grounds (1) that Brock had failed to adduce evidence that he suffered from a sufficiently serious medical condition, (2) that there was no evidence that the defendants were deliberately indifferent to Brock's medical needs, and (3) that none of the defendants were personally involved in the decision to deny Brock consultation with an outside dermatologist. Brock appeals pro se. We affirm the judgment of the district court as to defendants Berbary and Eagan and vacate the judgment as to defendant Wright.²

Factual Background

Our discussion of the facts is informed by the standard of review applicable to appeals from summary judgment. We view the evidence in the light most favorable to Brock, drawing all reasonable inferences in his favor. See Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir.2001). Any doubts about the credibility of an affidavit or deposition are generally left to the factfinder, our role being to determine whether there is indeed no issue of material fact in dispute. Id.

Many of the relevant facts are uncontroverted. On December 19, 1998, Brock suffered a serious knife wound to his right cheek, from below the corner of his right lip nearly to the earlobe. The laceration was sutured at a local hospital. After the removal of his sutures, Brock was referred to an outside dermatologist who noted, a little less than a month after the incident, that the wound was "healing remarkably well." The dermatologist's report also indicated that Brock had a history of "keloid formation" and, indeed, was observed at the hospital as having "significant keloid formation on other lacerations." "I would have him [follow up] for a steroid injection, should his laceration begin to keloid in the future," the report concluded.

Keloids are abnormal overgrowths of fibrous tissue that, when triggered by a skin injury, typically extend beyond the location of the original wound. They are elevated above adjacent skin and are discolored. They may continue to grow for years. An affidavit executed by Dr. Syed Farooq on Brock's behalf indicates that, beyond the potential of keloids to cause disfigurement, nerve fibers may become tangled in the overgrown tissue leading to "constant[] pain, local irritation, and paresthesias." Such symptoms are likely to be heightened when sensitive parts of the body, such as the face, are affected. The defendants introduced no evidence into the record to rebut this portion of Farooq's affidavit.

According to Brock, soon after he was seen by the dermatologist, the scar did indeed begin to keloid. In addition to anxiety over the prominence of the scar, Brock started experiencing pain. He states:

The pain ..., [] which I continue to endure on a daily basis, can best be described as a throbbing, burning pain. Whenever I move my mouth, for the sake of example, to brush my teeth, eat, yawn, or smile, it feels as though the right side of my face is being stuck with needles. The pain is nagging, it does not subside, and occurs every time I perform one of the aforementioned activities.

Dr. Farooq's affidavit similarly asserts that Brock cannot smile, yawn, brush his teeth, chew food on the right side of his mouth or sleep on his right side without experiencing pain. He also claims that Brock's teeth on the right side are decaying "at an excessive speed" due to Brock's inability to brush them adequately.

Brock alleges that he informed prison medical staff on numerous occasions of the pain he was experiencing as a result of the laceration. But it is not until August 1999 that the first documentation appears that Brock complained of pain from his scar. At that time, he mentioned to a DOCS nurse that his face hurt and that a doctor had recommended steroid injections. The treating nurse noted that a large keloid had formed, prescribed antibiotic ointment, and referred Brock for an outside consultation with a dermatologist. A few days later, a DOCS physician, Dr. John Cetin, examined Brock and concurred in the need for a referral, noting the formation of a large, thick keloid.

The Regional Medical Director, Dr. David W. O'Connell, denied the request for a referral, writing that the nature of the requested consultation was "cosmetic." Although he had an opportunity to do so, Cetin did not appeal the decision of the medical director. In a subsequent affidavit, Cetin stated that there were no "collateral symptoms" to justify the appeal in light of the DOCS policy, promulgated by Defendant-Appellee Lester Wright, forbidding treatment of keloids in the absence of such symptoms.

Brock responded by filing an inmate grievance requesting that he be allowed to see a dermatologist. He urged that, given his medical history, "arrangements should be made to get me to a dermatologist (outside clinic) A.S.A.P., before further damage is done." The committee — consisting of two inmate representatives and two DOCS representatives — charged with hearing inmate grievances agreed with Brock and requested that Brock be allowed to see an outside dermatologist.

The Superintendent of the Collins Correctional Facility, Defendant-Appellee James Berbary, overturned the decision of the committee, noting only that the request for a consult was denied "by Central Office Medical." Berbary later stated that he "simply deferred to the decision of the Regional Medical Director since this is an issue within his medical opinion and field of expertise."

Brock appealed Berbary's decision to the Central Office Review Committee (CORC), arguing that the denial of medical treatment was causing him "pain, anguish, [and] sleeplessness." CORC affirmed Berbary's decision to deny the consult. The director of the Inmate Grievance Program is Defendant-Appellee T.G. Eagan. As such, Eagan sits as a nonvoting member on the CORC, and his signature appears at the top of the form rejecting Brock's grievance.

Having exhausted the appeals process in the New York prison system, Brock brought this civil rights action in federal district court seeking money damages for DOCS' inadequate treatment of his scar.

Analysis

On appeal, Brock reiterates his argument made to the district court that the refusal of the DOCS defendants to respond adequately to his medical condition constitutes cruel and unusual punishment in violation of the Eighth Amendment. Brock must meet two conditions in order to be successful against any one of the defendants. He must first show that his medical condition is objectively a serious one. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Then, Brock must show, for each defendant, that the defendant acted with deliberate indifference to Brock's medical needs. Estelle, 429 U.S. at 104, 97 S.Ct. 285; Chance, 143 F.3d at 702.

A. The objective test

In light of the facts in the record, we conclude that the defendants are not entitled to summary judgment on the ground that Brock's medical needs were insufficiently serious to meet the Estelle test.

There is no settled, precise metric to guide a court in its estimation of the seriousness of a prisoner's medical condition. In many cases, however, we have set forth factors that should guide the analysis. Thus, in Chance v. Armstrong, we referred to a non-exhaustive list of such factors, including: (1) whether a reasonable doctor or patient would perceive the medical need in question as "important and worthy of comment or treatment," (2) whether the medical condition significantly affects daily activities, and (3) "the existence of chronic and substantial pain." 143 F.3d at 702 (citing and quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir.1992)).

In Chance, the prisoner's unresolved dental condition, which caused him great pain, difficulty in eating, and deterioration of the health of his other teeth, was held to be sufficiently serious to meet the Estelle standard. See id. at 702, 703. Similarly we have held that a tooth cavity is a serious medical condition, not because cavities are always painful or otherwise dangerous, but because a cavity that is not treated will probably become so. See Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir.2000). And in Hathaway v. Coughlin, 37 F.3d 63, 67 (2d Cir.1994), we identified as serious a hip condition that caused a prisoner "great pain over an extended period of time and ... difficulty walking."

Brock has alleged that his scar is a source of chronic pain that interferes with his ability to conduct tasks associated with daily living. This allegation is supported by the affidavit Dr. Farooq made after...