Wright v. Genovese

• Decision Date: 09 March 2010
• Docket Number: No. 9:07-CV-0473 (LEK/ATB).,9:07-CV-0473 (LEK/ATB).
• Parties: Alyton WRIGHT, Plaintiff, v. Maryann GENOVESE, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

694 F. Supp.2d 137

Alyton WRIGHT, Plaintiff, v. Maryann GENOVESE, et al., Defendants.

No. 9:07-CV-0473 (LEK/ATB).

United States District Court, N.D. New York.

March 9, 2010.

Alyton Wright, pro se.

C. Harris Dague, AAG, for Defendants Genovese, Capone, and Wright.

Kathleen M. Ryan, Esq., for Defendant Miller.

DECISION AND ORDER

LAWRENCE E. KAHN, District Judge.

This matter comes before the Court following a Report-Recommendation filed on February 17, 2010 by the Honorable Andrew T. Baxter, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3 of the Northern District of New York. Report-Rec. (Dkt. No. 110). After ten days from the service thereof, the Clerk has sent the entire file to the undersigned, including Plaintiff Alyton Wright's Objections, (Dkt. No. 111) ("Objections"), which were filed on March 8, 2010.

It is the duty of this Court to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). "A district judge ... may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. This Court has considered the Objections and has undertaken a de novo review of the record and has determined that the Report-Recommendation should be approved for the reasons stated therein.

Accordingly, it is hereby

ORDERED, that the Report-Recommendation (Dkt. No. 110) is APPROVED and ADOPTED in its ENTIRETY; and it is further

ORDERED, that Defendant Miller's Motion for summary judgment (Dkt. No. 96) is GRANTED, and it is further

ORDERED, that Defendants Genovese, Capone, and Wright's Motion for summary judgment (Dkt. No. 97) is GRANTED, and it is further

ORDERED, that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED in its entirety; and it is further

ORDERED, that the Clerk serve a copy of this Order on all parties.

IT IS SO ORDERED.

REPORT-RECOMMENDATION

ANDREW T. BAXTER, United States Magistrate Judge.

This matter has been referred to me for Report and Recommendation, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c), by the Honorable Lawrence E. Kahn, Senior United States District Judge.

In this civil rights complaint, plaintiff alleges that defendants denied him constitutionally adequate medical care and equal protection of law, while plaintiff was an inmate in the custody of the Shawangunk Correctional Facility ("Shawangunk"). He seeks declaratory and injunctive relief, as well as substantial damages.

Presently before this court are two motions for summary judgment, pursuant to FED.R.CIV.P. 56—one filed on behalf of defendant Miller, a private physician at Albany Medical Center (Dkt. No. 96), and the second submitted for defendants Genovese, Capone, and Wright, physicians who were employed by, or contractors for, the Department of Correctional Services (DOCS) (Dkt. No. 97).¹ Plaintiff filed a response to the motion filed by the DOCS defendants (Dkt. No. 102), but did not respond directly to the motion filed by Dr. Miller. For the following reasons, this court recommends that the defendants' motions for summary judgment both be granted and the complaint dismissed.

DISCUSSION

I. Facts

Plaintiff was an inmate at Shawangunk during all times relevant to this action. In late 2005 and 2006, plaintiff was examined and treated by medical personnel, including Dr. Maryann Genovese, a physician at Shawangunk employed by DOCS, and Dr. Robert Capone, a retired cardiologist at the Albany Medical Center ("AMC") and part-time consultant for DOCS. Plaintiff was referred for an echocardiogram, stress test, and ultimately, a cardiac catheterization, which was performed by Dr. Jan Houghton at AMC on April 13, 2006. (Atty. Ryan Aff. in support of Miller Sum. Jdgm. Mtn., Dkt. No. 96-2, ¶ 10; Ex. D12 (DOCS Medical Records), Dkt. No. 96-17, at DOCS-282-291, 294-295, 298-299, 304-305).² Plaintiff was then referred to defendant Dr. Stuart Miller, a private thoracic surgeon with privileges at AMC.³ On April 17, 2006, Dr. Miller performed coronary bypass surgery on plaintiff (then age 43) at AMC. (Miller Aff., Dkt. No. 96-40, ¶¶ 16-21; DOCS-304-305).

The plaintiff tolerated his surgery well, and, after being discharged from AMC on April 21, 2006, he was returned to the medical unit at Shawangunk for post-operative treatment and observation. (Genovese Aff., Dkt. No. 97-3, ¶ 10; Ex. 2 (DOCS medical records), D78). Contrary to the allegations in the complaint (Dkt. No. 1 at 5, ¶ 6), Dr. Miller's discharge instructions were forwarded to Shawangunk; three copies were included in plaintiff's medical records from DOCS. (Miller Aff. ¶ 32; DOCS-279-280, 292-293, 304-305). After reviewing the relevant DOCS medical records, the surgeon, Dr. Miller, concluded that the immediate post-operative treatment provided by Dr. Genovese and others at Shawangunk was appropriate and consistent with his discharge instructions. (Miller Aff. ¶¶ 33-34). Dr. Genovese prescribed a battery of cardiac and pain medications recommended by plaintiff's surgeon; a few of the drugs had different brand names, but had equivalent active ingredients. (Genovese Aff. ¶¶ 11, 12; Miller Aff. ¶¶ 29, 33).

By April 25, 2006, the medical staff at Shawangunk determined that the plaintiff was not suffering from any acute complications from his surgery, and returned him to the facility's general population. (Genovese Aff. ¶ 10; D79). Plaintiff complains that he was denied appropriate follow-up medical care in that: (1) he was not appropriately excused from strenuous prison labor, which impeded his recovery and caused him considerable pain; (2) he was not scheduled for a follow-up examination with his surgeon, pursuant to post-operative instructions; and (3) he was not provided adequate prescription medication, in particular sufficient medication to manage his post-operative pain. (Complaint at 9-10).

Consistent with the discharge instructions from the surgeon, Dr. Miller, Dr. Genovese completed a "Medical No-Duty Status" form directing that the plaintiff was to do "no heavy lifting pushing pulling" and excusing him from his a.m. and p.m. programs for the period between April 25 and May 30, 2006.(D95). Contrary to Dr. Genovese's recent declaration that she initially assigned plaintiff to bed rest and meals in his cell (Dkt. No. 97-3, ¶ 10), she checked the "No" box for "Bed Rest" and "Feed in Cell" on the form she completed in April 2006.

According to plaintiff, "immediately" upon his re-assignment to general population, he was returned to his job program in grounds keeping, which necessarily included heavy lifting, pushing, and pulling, and which exacerbated his post-operative pain. (Complaint at 6, ¶¶ 8, 9). In response to the summary judgment motion, plaintiff stated that "only after repeated complaints of pain ... to medical personnel,... did any medical personnel get the understanding that plaintiffs assigned work program consisted of performing strenuous upper body activity...." (Pl. Dec., Dkt. No. 102-1, ¶¶ 17-20). However, the DOCS medical records for April and May 2006 do not reflect any complaints from plaintiff regarding pain related to his work or other information that would have put Dr. Genovese or Dr. Capone on notice that, contrary to medical orders, plaintiff was being required to engage in strenuous work during the month following his surgery. (D41-D45, D99).

DOCS did not schedule a follow-up appointment with the plaintiff's surgeon, Dr. Miller, contrary to the discharge directions. (Miller Aff. ¶¶ 31, 32; DOCS-305). Instead, plaintiff was referred for a consultation on May 11, 2006 with Dr. Capone, the part-time cardiology consultant for DOCS. (Genovese Aff. ¶ 25; D42, D99, D124). Dr. Genovese stated that she did not have the "final say" regarding whether or when consultations she recommended would be scheduled; but she noted that "Consultation with a Cardiologist to treat plaintiffs on-going condition and recovery from surgery was appropriate." (Genovese Aff. ¶ 25). While Dr. Miller stated that it was the responsibility of DOCS to schedule a follow-up visit, he noted: "Routinely, surgical patients are discharged back to the cardiologist for follow-up. Certainly, if the cardiologist had any concerns about a patient's possible need for subsequent surgery or further medication, he or she would have contacted my office." (Miller Aff. ¶ 36). Dr. Capone concluded that, at least until March 2007, plaintiff was not suffering from any complications from the surgery that required a consultation with the surgeon. "Had the plaintiff been experiencing issues with the incision site, e.g. infection, non-closure, swelling, I would have been more apt to recommend to his facility physician that he see Dr. Miller. This, however, was not the case with plaintiff." (Capone Aff., Dkt. No. 97-11, ¶¶ 17).

In the month following his surgery, plaintiff was treated with Percocet to manage his pain, in accordance with the direction of Dr. Miller (Miller Aff. ¶ 33; DOCS-305) and the recommendation of Dr. Capone (Capone Aff. ¶ 11; D99). During much of this time period, plaintiff was receiving Percocet three times per day. (Genovese Aff. ¶ 15; D81-82). The medical records reflect the medical judgment of the DOCS medical staff that, by May 11, 2006, the plaintiff should be weaned from Percocet and transitioned to non-prescription pain relievers, such as Tylenol. (D42, D99).

The DOCS medical records document that plaintiff started complaining about substantial chest pain in early June 2006, after his medical work restrictions lapsed and after Dr. Genovese stopped prescribing Percocet. (D33-D41). Plaintiff claims that Dr. Genovese advised him that she would no longer prescribe pain medications because he was "a drug addict." (Pl. Aff., Dkt. No. 102-2 at 3, ¶ 18). Dr. Genovese only indirectly responds to this claim by stating "My provisioning of pain medication to plaintiff was based upon...