Hernandez v. Keane, Docket No. 00-0347.

• Decision Date: 20 August 2003
• Docket Number: Docket No. 00-0347.
• Citation: 341 F.3d 137
• Parties: Juan HERNANDEZ, Plaintiff-Appellant, v. John P. KEANE, Dr. Satish Kapoor, Dr. E. Lofton, Dr. Khee Tint Maw, Dr. M.A. Halko, Dr. Alexis Lang, P.A. Philip Williams, Kathy Greiner, Charles Greiner, C.O. Hattie Cradle, C.O. Edward Clark, Sgt. Marion Brown, and Sgt. Sean Murphy, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

341 F.3d 137

Juan HERNANDEZ, Plaintiff-Appellant, v. John P. KEANE, Dr. Satish Kapoor, Dr. E. Lofton, Dr. Khee Tint Maw, Dr. M.A. Halko, Dr. Alexis Lang, P.A. Philip Williams, Kathy Greiner, Charles Greiner, C.O. Hattie Cradle, C.O. Edward Clark, Sgt. Marion Brown, and Sgt. Sean Murphy, Defendants-Appellees.

Docket No. 00-0347.

United States Court of Appeals, Second Circuit.

Argued: March 7, 2003.

Decided: August 20, 2003.

COPYRIGHT MATERIAL OMITTED

JASON E. HALPER, Lowenstein Sandler PC, Roseland, N.J. (Martin E. Karlinsky, Katten Muchin Zavis Rosenman, New York, NY, on the brief), for Plaintiff-Appellant.

WILLIAM B. JAFFE, Assistant Attorney General (Eliot Spitzer, Attorney General of the State of New York, Marion R. Buchbinder, Assistant Solicitor General, on the brief), New York, NY, for Defendants-Appellees.

Before: WALKER, Chief Judge, JACOBS and CALABRESI, Circuit Judges.

DENNIS JACOBS, Circuit Judge.

Plaintiff-appellant Juan Hernandez, a prisoner in the New York State prison system, sued various state prison officials in the United States District Court for the Southern District of New York (Pitman, J.), alleging that they violated the Eighth Amendment's prohibition on cruel and unusual punishment by their deliberate indifference to his serious medical needs. A jury returned a verdict in his favor and apportioned approximately $108,000 in damages among defendants at Sing Sing Correctional Facility: Charles Greiner, the First Deputy Superintendent; Dr. Satish Kapoor, the medical supervisor; Dr. M.A. Halko, plaintiff's primary care physician; Phillip Williams, a physician's assistant; Kathy Greiner, the Nurse Administrator; and Sgt. Sean Murphy, a corrections officer (collectively, "defendants"). The district court granted defendants' Rule 50 motion for judgment as a matter of law on the ground that there was insufficient evidence that any of the defendants acted with "deliberate indifference," the culpable mental state required to support an Eighth Amendment violation. Hernandez v. Keane ("Hernandez II"), No. 97 Civ. 1267, 2000 U.S. Dist. LEXIS 21948, at *26-*27 (S.D.N.Y. Nov. 17, 2000).

For the reasons that follow, we affirm.

BACKGROUND

Juan Hernandez was arrested by the New York City Police Department on November 25, 1992 on charges arising out of an incident in which he sustained multiple gunshot wounds. Numerous bullet fragments were removed from his body at St. Luke's Hospital and at Bellevue Hospital's prison ward; for medical reasons, however, the surgeons did not remove bullet fragments embedded in his left hand. This injury was particularly serious: Hernandez describes the gunshot as having "shattered" and "ripped apart" his hand. Tr. at 52.¹

On December 8, Hernandez was released from police custody on his own recognizance and was transferred from Bellevue's prison ward into the hospital's general population. The next day, against the advice of Bellevue's medical staff, he left the hospital, the bullet fragments still embedded in his hand. According to Hernandez, "[t]he pain was excruciating," and the hand was swollen to "the size of a boxing glove." Id. at 55.

Hernandez remained free on his own recognizance for the next five months, from the time he left Bellevue on December 9, 1992, until he was rearrested on April 18, 1993 and placed in the custody of the City of New York's Department of Corrections. During this five-month period he sought no treatment for his hand because (he explained) he could not afford it.

Hernandez was then in the City's custody for fifteen months — from April 1993, when he was rearrested, until July 1994, when his criminal trial concluded — during which time he unsuccessfully sought treatment for his hand. No one responsible for his care during this period was named as a defendant in this suit.

In July 1994, Hernandez was convicted in state court of attempted murder in the second degree, and was transferred to the custody of the State to serve his sentence. He was initially placed in the Downstate Correctional Facility in Fishkill, New York ("Downstate"). There, Hernandez again sought treatment for his hand but was told that he would not be treated until he arrived at the "next facility." Id. at 59. No one responsible for plaintiff's care at Downstate was named as a defendant in this suit.

Hernandez arrived at the Sing Sing Correctional Facility in Ossining, New York ("Sing Sing") on August 24 or 26, 1994, approximately twenty-one months after he sustained the gunshot wound to his left hand. Except for a nine-month transfer to another facility between March 1995 and January 1996, he remained at Sing Sing until he filed this lawsuit in February 1997. The defendants in this appeal all worked at Sing Sing while plaintiff was there.

Upon his initial arrival at Sing Sing, plaintiff complained to prison officials about severe pain caused by the bullet fragments in his left hand. He was examined by defendant Philip Williams, a Sing Sing employee whose title was Physician's Assistant. Williams discussed the injury with his supervisor, defendant Dr. M.A. Halko, who was plaintiff's primary care physician. Because Sing Sing had no surgeons on staff, Dr. Halko and Williams referred Hernandez to an outside consultant surgeon, Dr. Louis Rose. Dr. Rose examined Hernandez on October 31, and recommended surgery to remove the gunshot fragments and reconstruct the hand. An operation was scheduled for November, but was cancelled when Dr. Rose became unavailable (through no fault of defendants or anyone else at Sing Sing).

In December, no follow-up appointment having been made, Hernandez filed a grievance with the Sing Sing prison administration recounting his difficulties in getting treatment and complaining that the situation was getting worse: "Yesterday a piece of the metal came halfway out of my hand and is now sticking out. This is very painful." Id. at 67. At trial, Hernandez explained that by this point his hand had contracted into a claw-like shape.

Hernandez was thereafter examined by Dr. Halko, who prescribed pain medication, recommended that surgery be performed "ASAP," and arranged a consultation with another outside surgeon, Dr. Richard Magill. Id. at 78. At an examination on December 19, Dr. Magill discussed surgery, and asked that plaintiff return a full month later "to discuss surgery in [further] detail." Id. at 894.

Over the next several months, plaintiff was treated by Sing Sing's medical staff for a chronic cyst on his back and for a seizure disorder, but was not sent back to Dr. Magill. Uncontroverted evidence at trial established that in January 1995, Hernandez refused to take medication that Sing Sing medical staff had prescribed to alleviate his seizure condition, and that scheduling surgery in such circumstances "[c]ould be devastating and c[ould] result in grave consequences, including death." Id. at 869. Then, on March 7, Hernandez was transferred from Sing Sing to Elmira Correctional Facility in Elmira, New York ("Elmira"), several hundred miles away. This transfer was generated by a statewide prisoner transfer computer system; however, a Sing Sing policy called for the placement of a medical "hold" to prevent the transfer of patients awaiting hospitalization, surgery, or consultation for a serious or complex illness. The testimony at trial established that medical holds are a "clerical procedure," and an "administrative function." Id. at 614. The evidence hid not establish who had the direct responsibility for placing a hold on Hernandez. The hold policy stated that the nurse administrator, Nurse Prigitano, had primary responsibility for providing the records coordinator with a list of inmates on medical hold, and it appears that she and several other nurses were primarily responsible for placing medical holds. Nurse Prigitano was also directly responsible for scheduling prisoner visits with outside clinics, id. at 622-24, but she was not named as a defendant in this case. Williams, Dr. Halko, or their supervisor, defendant Dr. Satish Kapoor could have placed a medical hold on Hernandez or scheduled a follow-up appointment with Dr. Magill, but they did not do so.

At Elmira, prison officials referred Hernandez to (yet another) outside surgeon for advice on possible surgery to remove the gunshot fragments and reconstruct the hand, but this surgeon recommended against such an operation on grounds that the bullet fragments were "not interfering with the use of the hand" and that surgery "could in fact compromise hand function even further." Def. Ex. 389. None of the officials responsible for plaintiff's care at Elmira were named as defendants in this suit.²

Hernandez was transferred back to Sing Sing in January 1996. After several months of further examinations and testing, Dr. Magill concluded that the benefits of surgery outweighed the risks, and operated to remove the bullet fragments. As part of this operation, a piece of bone was taken from plaintiff's leg and grafted into his hand.

The hand did not improve as quickly as hoped after the surgery. Plaintiff attributed this to the following errors or neglects committed by defendants (and others) in the post-operative period: pins and wires inserted in the hand during surgery caused infection when they were not removed within ten weeks (as directed by Dr. Magill); prescribed physical therapy for plaintiff's hand was not provided; and "feed up" passes, issued to allow him to receive meals in his cell when he had difficulty carrying a food tray, were briefly suspended.

In February 1997, plaintiff brought suit under 42 U.S.C. § 1983 against defendants and various others involved in his medical treatment at Sing Sing, alleging Eighth Amendment violations and averring that these violations caused permanent damage to his hand.³ At the conclusion of plaintiff's case, and again at the close of evidence, defendants moved pursuant to Rule 50 of the Federal Rules of Civil Procedure for...