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UNITED STATES DISTRICT COURT NORTHERN DISTRICT of NEW YORK JOHN YOUNG, Plaintiff Case 9:15-cv-01222-MAD-TWD Document 59 Filed 02/12/18 Page 1 of 231 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________ JOHN YOUNG, Plaintiff, v. 9:15-cv-1222 (MAD/TWD) DR. FRICKE1 and ANTHONY LUCCA, Defendants. _____________________________________________ APPEARANCES: OF COUNSEL: JOHN YOUNG Plaintiff, pro se 16-A-0363 Hudson Correctional Facility, Box 576 Hudson, New York 12534 THUILLEZ, FORD, GOLD, BUTLER MOLLY C. CASEY, ESQ. & MONROE, LLP Attorneys for Defendant Dr. Russell Fricke 20 Corporate Woods Blvd., 3rd Floor Albany, New York 12211 SHANTIZ & BELKIN M. RANDOLPH BELKIN, ESQ. Attorneys for Defendant Anthony Lucca 26 Century Hill Drive, Suite 202 Latham, New York 12110 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION This matter has been referred to the Court for a Report and Recommendation by the Hon. Mae A. D’Agostino, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3(c). Pro se Plaintiff John Young, an inmate in the custody 1 The Clerk is directed to amend the docket in this action from “Dr. Fricki” to “Dr. Fricke” to reflect the correct spelling of Defendant’s surname. (See Dkt. No. 45.) Case 9:15-cv-01222-MAD-TWD Document 59 Filed 02/12/18 Page 2 of 231 of the New York State Department of Corrections and Community Supervision (“DOCCS”), commenced this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. (Dkt. No. 1.) The allegations in Plaintiff’s amended complaint, which is the operative pleading, relate to Plaintiff’s previous confinement as a pretrial detainee at the Schenectady County Jail (“SCJ”). (Dkt. No. 8.2) Plaintiff claims Defendants were aware of Plaintiff’s prescribed dietary needs but were “intentionally” and deliberately indifferent to these needs. Id. As a result, Plaintiff’s medical conditions worsened. Id. Plaintiff’s medical indifference claims against Dr. Fricke and Anthony Lucca, alleged to be the head kitchen chef, (“chef Lucca”) survived initial review pursuant to 28 U.S.C. §§ 1915(e) and 1915A. (Dkt. No. 12.) Currently pending before the Court is Dr. Fricke’s motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 45.3) Plaintiff opposes the motion. (Dkt. No. 51.) For reasons explained below, the Court recommends that Dr. Fricke’s motion for summary judgment be granted. The Court further recommends that Plaintiff’s deliberate indifference claim against chef Lucca be sua sponte dismissed pursuant to §§ 1915(e) and 1915A. 2 The amended complaint does not specify whether Plaintiff was a pretrial detainee or a convicted inmate during his confinement at the SCJ. (See Dkt. No. 8.) The record establishes Plaintiff was a pretrial detainee during his confinement at the SJC. (Dkt. No. 51-2 at ¶ 1.) See also http://nysdoccslookup.doccs.ny.gov (DIN 16-A-0363) (last visited Feb. 5, 2018). 3 Upon review of the docket, it appears the “Supporting Affidavit of Russell Fricke, M.D.,” was inadvertently omitted from the electronic filing submitted to the Court via the Clerk’s CM/ECF system. (See Dkt. Nos. 45, 46.) Plaintiff has, however, attached a copy of Dr. Fricke’s affidavit to his opposition (see Dkt. No. 51-3), which the Court will reference throughout this Report and Recommendation. 2 Case 9:15-cv-01222-MAD-TWD Document 59 Filed 02/12/18 Page 3 of 231 I. BACKGROUND A. Material Facts During all times relevant to this action, Plaintiff was being held as pretrial detainee at the SCJ. (Dkt. No. 51-2 at ¶ 1; Dkt. No. 45-8 at 8-9, 24.) Prior to his incarceration at the SCJ, Plaintiff was diagnosed with, among other conditions, diabetes mellitus (Type II), ulcers, hepatitis C, and cirrhosis of the liver. (No. 8 at 4; Dkt. No. 45-8 at 19.) From the mid-1990s until 2014, Plaintiff was taking Metformin, a medication that is effective in controlling blood sugar levels in diabetic patients. (Dkt. No. 45-8 at 16; Dkt. No. 51-3 at ¶ 16.) Thereafter, Plaintiff controlled his diabetes with diet and exercise. Id. Plaintiff treated with Ellis Primary Care and Family Medicine from February 13, 2013, through March 9, 2015. (See generally Dkt. No. 45-11.) As of March 9, 2015, Plaintiff had a history of, among other conditions, abdominal pain, aortic stenosis, ascites, asthma, chest pain, cirrhosis, hepatitis C, diabetes mellitus (type II), esophageal varices, gastric ulcer, gastritis, h.pylori, hypertension, latent tuberculosis, losing weight, peripheral neuropathy, sciatica, and valvular heart disease. Id. at 13-14. Plaintiff has a surgical history of hemorrhoidectomy. Id. at 13. Plaintiff was prescribed Lotrab for pain, Nadolol for hypertension, and hydrocortisone for hemorrhoids. Id. at 14. Plaintiff controlled his diabetes with diet and exercise. Id. According to documents attached to Dr. Fricke’s motion for summary judgment, and not specifically opposed by Plaintiff, Plaintiff’s medical conditions were being monitored on a regular basis by medical staff during his confinement at the SCJ. (See generally Dkt. No. 45-8; see also Dkt. No. 51-3 at ¶ 15; Dkt. No. 51-1 at ¶ 15.) On March 11, 2015, Plaintiff was booked into the SCJ. (Dkt. No. 51-2 at ¶ 1.) During his medical intake, Plaintiff reported controlling his diabetes with diet and exercise. (Dkt. No. 8 at 4; Dkt. No. 45-9 at 49; Dkt. No. 51-3 at ¶ 9.) 3 Case 9:15-cv-01222-MAD-TWD Document 59 Filed 02/12/18 Page 4 of 231 Plaintiff was placed on the diabetic diet and enrolled in the “Chronic Disease Clinic” program. (Dkt. No. 8-1 at 1; Dkt. No. 45-9 at 17, 135-141.) Plaintiff’s blood glucose levels in relation to his diabetes were ordered to be monitored on a daily basis with “finger sticks.” (Dkt. No. 51-3 at ¶13.) Dr. Fricke serves as the jail physician. Id. at ¶1. As the jail physician, among other things, Dr. Fricke places inmates on medically indicated diets, when such diets are appropriate given the inmate’s history and presentation. (Dkt. No. 51-3 at ¶¶ 1, 5.) Dr. Fricke’s involvement with respect to inmate diets is limited to determining whether an inmate requires a medical diet, and submitting the paperwork to the jail so that the appropriate meals will be provided by the kitchen. Id. at ¶¶ 5, 6. Dr. Fricke has no involvement with the formulation of the jail menus. Id. at ¶¶ 7, 8. The recipes at the SCJ are established by DOCCS and approved by a registered dietician. (Dkt. No. 45-12 at 2; Dkt. No. 51-3 at ¶ 7.) On March 17, 2015, Plaintiff was examined by Dr. Fricke. (Dkt. No. 45-9 at 49; Dkt. No. 51-3 at ¶1.) Dr. Fricke filled out a “Medical Approved Items/Diet” form indicating Plaintiff was to continue receiving the diabetic diet for the duration of his stay at the SCJ, a copy of which was placed in Plaintiff’s medical record. (Dkt. No. 51-3 at ¶ 5.) On March 26, 2015, it was noted that Plaintiff was “critical of the diabetic diet.” (Dkt. No. 45-9 at 50.) Plaintiff was informed that despite what the corrections officers may have told him, Dr. Fricke was not involved in the formulation or approval of the medical diets at the jail. Id. On April 23, 2015, Plaintiff reported abdominal pain and upset stomach which Plaintiff believed was related to the “spicy sauces used to flavor the bean-based meals.” Id. at 47. Plaintiff requested a “bland diet, with more variety.” Id. In Dr. Fricke’s clinical judgment, 4 Case 9:15-cv-01222-MAD-TWD Document 59 Filed 02/12/18 Page 5 of 231 Plaintiff’s complaints of “stomach upset were not meal linked.” (Dkt. No. 51-3 at ¶ 10.) Dr. Fricke placed Plaintiff on the bland diet based on Plaintiff’s own request and because it was not contraindicated. (Dkt. No. 51-3 at ¶ 10; Dkt. No. 45-9 at 10.) Plaintiff remained on the diabetic diet and the bland diet while incarcerated at the SCJ. (Dkt. No. 45-9 at 10.) Plaintiff refused his finger sticks on April 15, April 27, May 2, and May 4, 2015. (Dkt. No. 45-9 at 45, 96-97.) The medical staff cannot force an inmate to have his finger stick done as ordered. (Dkt. No. 51-3 at ¶ 14.) On May 7, 2015, it was noted that Plaintiff’s blood glucose levels were elevated. (Dkt. No. 45-9 at 47.4) Dr. Fricke was made aware and suggested discussing Metformin with Plaintiff. (Dkt. No. 51-3 at ¶ 16.5) On May 9, 2015, it was also noted that Plaintiff’s blood glucose levels were elevated. (Dkt. No. 45-9 at 47.) Plaintiff was not symptomatic and was scheduled to see Dr. Fricke on May 12, 2015. Id. Plaintiff refused his finger sticks on May 9, May 10, and May 11, 2015. Id. at 94-95.6 On May 12, 2015, Dr. Fricke prescribed Metformin to control Plaintiff’s blood glucose levels. Id. at 42. Plaintiff was prescribed Metformin for the remainder of his stay at the SCJ. Id. at 5, 25.7 4 For a diabetic adult, the target blood glucose range is 90-130 mg/dL while fasting, and less than 180 mg/dL after a meal. (Dkt. No. 51-3 at ¶ 15.) 5 The May 7, 2015, encounter note states: “Dr. Fricke instructed to discuss [with] i/m the desire to start Metformin. If Pt. not agreeable, then chart to MD and he will see on Tues.
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