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JAMES BAKER, Plaintiff, v. EDWARD BLANCHETTE, Defendant.
CASE NO. 3:99CV548 (RNC)(DFM)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
186 F. Supp. 2d 100
September 12, 2001,
Decided
September 12, 2001, Filed
RULING AND ORDER
Plaintiff James Baker, a Connecticut inmate, brings this action pursuant
to 42 U.S.C. § 1983 against Edward Blanchette, M.D., the Director of
Professional and Clinical Services for the State of Connecticut Department of
Correction ("DOC"). The plaintiff claims that the defendant was deliberately indifferent to
his need for a surgical procedure and delayed the procedure for financial
reasons in violation of the Eighth and Fourteenth Amendments. The defendant has moved for
summary judgment arguing that no reasonable jury could find a constitutional
violation in this case because the plaintiff's need for the surgery was not
urgent and the plaintiff suffered no pain or serious harm as a result of the
delay. The defendant also argues that he is entitled to have the case dismissed based on the defense of
qualified immunity because it was objectively reasonable for him to think that
the surgery could be postponed without violating the plaintiff's constitutional
rights. For the reasons that follow, the defendant's motion is denied
and the Clerk is ordered to obtain pro bono counsel for the plaintiff.
Facts
The
pleadings, Local Rule 9 statements, affidavits and documentary evidence
submitted by the parties, viewed in a light most favorable to the plaintiff,
would permit a reasonable jury to find the following facts.
In March 1994, the plaintiff
underwent a colostomy procedure at Yale New Haven Hospital following a gunshot
wound to his thigh and rectum. A colostomy is a surgical connection of the
large intestine to the body surface at the abdominal wall to allow for passage
of waste into a bag. In cases involving traumatic injury to the colon, a
temporary colostomy may be "closed" or "reversed" after the
colon has been given time to heal. The surgeons who performed the plaintiff's
colostomy procedure anticipated that he would return to the hospital to have
the colostomy closed in about six months.
On May 2, 1994, the plaintiff was placed in
the custody of the DOC to begin serving a sentence of less than one year. On
May 17, 1994, he was arraigned in state court on murder charges and bond was
set at $250,000.
On
May 26, 1994, the plaintiff was transported to Yale New Haven Hospital for a follow
up visit. At that time, he was doing well and had no complaints. He was
scheduled to be seen three months later for preoperative procedures in
connection with closure of the colostomy, which was planned for September.
On
May 27, 1994, a physician at the New Haven Correctional Center submitted a
request to the DOC Managed Health Care Utilization Review Committee
("URC") seeking authorization for closure of the plaintiff's
colostomy. The URC denied the request citing lack of supporting medical information.
The URC stated that a letter was needed from the plaintiff's surgeon regarding
when the closure had to be done.
On
June 20, 1994, a nurse at the New Haven Correctional Center communicated with
Dr. Burns at Yale New Haven Hospital regarding the URC's request for more
information. The nurse left a message for Dr. Burns asking whether the closure
needed to be done immediately. Dr. Burns' office replied that the closure
should be done in September or October. The nurse followed up by asking whether
the closure could be postponed until January 1995, when the plaintiff would be
completing [*102] his sentence of less than one year. Dr. Burns' office replied
that January 1995 was "ok" with him.
On October 15, 1994, the
plaintiff was transferred to the Connecticut Correctional Institution at
Cheshire. The following week, the plaintiff complained about bleeding and pain
at the colostomy site, which was examined and found to have some bleeding and a
yellowish discharge. Medical personnel noted that the plaintiff's request for a
colostomy closure had been denied by the URC, apparently because of his
anticipated release date of January 1995, but that he had charges pending
against him and might not be released in January.
On
January 27, 1995, the plaintiff was transferred back to the New Haven Correctional Center. Three days later, he
completed serving his sentence of less than one year. However, he was detained
in DOC custody on the pending murder charges because he was unable to meet the
$250,000 bond.
On
February 24, 1995, a physician's assistant at the New Haven Correctional Center
submitted a request to the URC seeking authorization to make arrangements for
closing the plaintiff's colostomy. In March 1995, before the URC acted on that
request, an unidentified medical consultant reported that there was no urgency
and that the closure could be postponed until the plaintiff got out of prison.
The defendant became involved in the plaintiff's treatment at about this time.
On
August 24, 1995, plaintiff was transferred to another DOC facility. Within a
week of his arrival there, another request was submitted to the URC seeking
approval of a colostomy closure. The request stated: "Had colostomy
following [gunshot wound] in 3/94. Has been moved from facility to facility.
URC didn't approve in late 1994 because of pending discharge which didn't
happen." On September 6, 1995, the request was approved on the condition
that no court dates be pending within three months of the surgical procedure.
On
September 29, 1995, the plaintiff was examined at St. Francis Hospital in
connection with the anticipated surgery, which was going to be performed there.
The examination revealed that the plaintiff had developed a parastomal hernia,
which is a common occurrence after a colostomy.
In
October 1995, the plaintiff returned to St.
Francis Hospital in preparation for a colostomy closure and hernia
repair. Before the surgery could be performed, he was ordered to appear in
court in connection with the pending murder charges. Accordingly, the surgery
was postponed.
On
November 29, 1995, the plaintiff was convicted on the murder charges and his
bond was increased to $500,000. On January 12, 1996, he was sentenced to a
total effective sentence of 50 years.
On March 14, 1996, a request was
submitted to the URC seeking approval of a surgical consult for the plaintiff.
The request noted that the plaintiff had been scheduled for surgery at St.
Francis Hospital in October 1995 but that the plaintiff had been "moved
about" and was now a sentenced prisoner. On March 28, 1996, the request
was denied by the URC on the ground that it involved a pre-existing condition.
On April 2, 1996, this denial was discussed with the defendant, who said he
would have it discussed again at the URC. See Def.'s Affidavit, Ex. A-1,
Clinical Record, 4/2/96.
On April 9, 1996, a nursing
supervisor sent a memorandum to the defendant asking for reconsideration of the
URC denial. The memorandum pointed out that the cost of providing the plaintiff with colostomy bags would be "$23.51
per week x 52 [*103] weeks x 50 years" and stated that this would be
"very, very expensive."
On
May 21, 1996, the defendant submitted a request to the URC seeking approval of
a colostomy closure and hernia repair. The request noted that this surgery had
been approved before but that the plaintiff had been "moved about and on
trial." The defendant's request was approved by the URC that day.
On July 29, 1996, the plaintiff
underwent surgery to close the colostomy
and repair the hernia. The surgery was completed without complications
and the plaintiff was discharged from the hospital on August 3, 1996.
The plaintiff never indicated to the
defendant or anyone else that he wanted to delay the colostomy closure. His
colostomy bag emitted a foul odor even when properly maintained and he had to
change it every two or three days. The hernia caused him some pain, which
increased when he tried to engage in certain activities.
Discussion
To establish
an Eighth Amendment claim based on denial of adequate medical care, a prisoner
must prove "deliberate indifference to [his] serious medical needs."
Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). A
serious medical condition exists when failure to treat the condition could
result in further significant injury or unnecessary infliction of pain or
suffering. See Chance v. Armstrong,
143 F.3d 698, 702 (2d Cir. 1998). Deliberate indifference exists when a prison
official knows that the prisoner faces a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to abate it. Harrison v. Barkley, 219 F.3d 132, 137-38
(2d Cir. 2000). Under this standard, as under § 1983 generally, a prison
official cannot be held liable unless he was personally involved in the
violation of the inmate's rights. See
Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997).
The parties appear to agree that
the plaintiff's temporary colostomy created a serious medical condition within
the meaning of Gamble. Factors that have been considered in determining
whether a condition is sufficiently serious to provide a basis for an Eighth
Amendment claim include whether the condition if untreated could deteriorate or
degenerate and thus lead to further injury, whether failure to treat the
condition could cause unnecessary infliction of pain or suffering, and whether
the condition significantly affects the inmate's ability to engage in normal
activities. See Chance, 143 F.3d at
702-03; Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996). Viewing the evidence in a manner
most favorable to the plaintiff, a reasonable jury could find that his
colostomy constituted a serious medical condition because (1) the colostomy
prevented him from eliminating waste in a normal manner; (2) the colostomy
required him to wear a bag that constantly emitted a foul odor; and (3) the
colostomy required significant maintenance by the plaintiff and medical personnel.
"Though these consequences do not inevitably entail pain, they adequately
meet the test of 'suffering' that Gamble recognized is inconsistent with
'contemporary standards of decency.'" Kehl, 85 F.3d at 88 (citing Gamble,
429 U.S. at 103). n1
Turning to the issue of deliberate indifference, analysis of this issue
is aided by dividing the chronology of events into three parts: the first covering the plaintiff's [*104] service of
his sentence of less than one year; the second covering the time he was held as
a pretrial detainee; and the third covering the time between his sentencing on
the murder charges and the performance of the surgery six months later.
With regard to the first of
these three time periods, there is no evidence that the defendant was
personally involved in the plaintiff's treatment, or even knew about his
colostomy, until early 1995, after the plaintiff had served his sentence of
less than one year and was being detained in connection with the murder
charges. The defendant has stated that he is "familiar with the plaintiff
. . . , having reviewed his entire medical file and having personally consulted
with DOC medical staff in 1995-96 regarding his medical condition and the
timing of the surgical reversal of his colostomy." Def.'s Affidavit, para.
13. The plaintiff does not contend, or offer any evidence, that the defendant
was involved in, or knew about, his treatment at an earlier time. Accordingly,
a reasonable jury could not find that the defendant was deliberately
indifferent to the plaintiff's medical needs during the time he was serving his
sentence of less than one year.
Turning to the second period of
time, during which the plaintiff was being held in DOC custody as a pretrial
detainee, the defendant contends that he postponed the plaintiff's colostomy closure
with the concurrence of the plaintiff's surgeons at Yale New Haven Hospital
because it was unclear how long the plaintiff was going to remain in DOC
custody. See Def.'s Local Rule 9(c)(1) Statement, paras. 17-19. The
plaintiff has denied those assertions without explanation or citation to any
evidence. See Pl.'s Local Rule 9(c)(2) Statement, paras. 17-19. However, he has
admitted the defendant's closely related assertions that "[as time went on
and the severity of [the plaintiff's] charges became known, there seemed to be
a strong likelihood that [the plaintiff] would be remaining in DOC custody for
a long enough period of time to insure the ability to provide proper pre and
post surgical evaluation and care," whereupon "the [URC] approved the
colostomy reversal with the appropriate stipulation that there be no pending
court dates for a period of three months following the surgery." See
Def.'s Local Rule 9(c)(1) Statement, para. 20, and Pl.'s Local Rule 9(c)(2)
Statement, para. 20. Given those undisputed assertions, a reasonable jury could
not find that the initial delay in scheduling the surgery while the plaintiff
was held as a pretrial detainee was due to the defendant's deliberate
indifference. n2
It is undisputed that the
plaintiff was scheduled for surgery in the fall of 1995 (when his parastomal
hernia was discovered in the course of pre-op procedures) and that the surgery
was postponed only because he had to appear in court on the murder charges. The
plaintiff has not denied the defendant's assertion that it was
"appropriate" for the URC to condition its approval of the surgery on the requirement that there be no
pending court dates for a period of three months following the surgery. See
Def.'s Local Rule 9(c)(2) Statement, para. 20, and Pl.'s Local Rule 9(c)(2)
Statement, para. 20. In view of that admission, a reasonable jury could not
find that postponing the surgery until after the murder charges were disposed
of was the result of deliberate indifference on the part of the defendant.
This brings us to the period
after the plaintiff was sentenced on the murder charges. The sentencing took
place on [*105] January 12, 1996. No action was taken to provide the plaintiff
with surgical treatment until approximately two months later, at which time a
request was submitted to the DOC seeking approval of the surgery. When that
request was denied, presumably for financial reasons, the defendant was
notified and said he would have it discussed again at the URC. See Def.'s
Affidavit, Ex. A-1, Clinical Record, 4/2/96. However, the defendant did not
submit a request for reconsideration to the URC for approximately two more
months, even though he knew the plaintiff's surgery was long overdue. When
the request for reconsideration was finally submitted, it was approved
immediately. The defendant
has offered no explanation for this four month delay in obtaining approval for
the surgery, the last two months of which appear to be directly attributable to
inaction on his part after the matter had been entrusted to him for follow up.
In light of the undisputed fact that the plaintiff was originally supposed to
have the colostomy closure in September or October of 1994, a jury could find
that this four month delay following the sentencing was excessive and that it was
due to deliberate indifference on the part of the defendant. Cf. Hathaway v. Coughlin, 37 F.3d 63, 67 (2d
Cir. 1994) (jury could infer deliberate indifference from delay of over two
years between discovery of broken pins in hip and defendant's request that
plaintiff be re-evaluated for surgery). n3
To
obtain summary judgment based on qualified immunity, the defendant must
demonstrate that it was objectively reasonable for him to believe that his
conduct did not violate an established constitutional right. See Harrison, 219 F.3d at 138. On the plaintiff's version of
the facts, which has some evidentiary support, he was denied access to
reasonably necessary surgery, not because of medical decisionmaking involving
the use of professional judgment, but solely because of cost. The defendant
does not attempt to argue that cost concerns were a legitimate factor in
determining the treatment the plaintiff should receive. Nor does he contend
that the unexplained delay in obtaining approval for the surgery after the
plaintiff was sentenced on the murder charges was objectively reasonable.
Accordingly, he has not demonstrated that he is entitled to qualified immunity.
n4
For
the foregoing reasons, the motion for summary judgment is hereby denied.
Because the plaintiff has a triable claim, the Clerk is hereby directed to take
steps to obtain pro bono counsel to represent him.
It
is so ordered this 12th day of September 2001.
Robert N. Chatigny
United States District Judge
FOOTNOTE:
n1 A jury could also find
that failure to close the colostomy could lead to the development of a hernia,
which, in turn, could produce pain and affect the plaintiff's ability to engage
in normal activities.
n2 The Third Circuit has indicated
that elective surgery for a pretrial detainee's non-acute condition may be
deferred for a brief period of time until he has been convicted or released.
See Boring v. Kozakiewicz, 833 F.2d
468, 473 (3rd Cir. 1987).
n3 On this view of the
matter, the defendant faces potential liability for damages caused by excessive
delay in obtaining approval for the surgery after the sentencing on the murder
charges. However, he has no liability for any damages arising from previous
delays, including damages relating to the development of the hernia.
n4 The defendant emphasizes that the surgery was elective in
nature. However, classifying surgery as elective does not abrogate a prison's
duty to promptly provide treatment necessary to address a serious medical need.
See Delker v. Maass, 843 F. Supp.
1390, 1394 (D. Or. 1994) (and cases cited).
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