Engles v. Corigliano et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JESSIE ENGLES,
Plaintiff,
v. 	9:23-CV-01056
(GTS/DJS)
BRANDI CORIGLIANO, et al.,
Defendants.
APPEARANCES: 	OF COUNSEL:
JESSIE ENGLES
Plaintiff, pro se
22-B-1293
Clinton Correctional Facility
P.O. Box 2001
Dannemora, New York 12929
SUGARMAN LAW FIRM LLP 	ALEXANDRA A. CALHOUN, ESQ.
Attorney for Defendant Changlai 	ZACHARY M. MATTISON, ESQ.
211 West Jefferson Street
Syracuse, New York 13202
HON. LETITIA JAMES 	AIMEE COWAN, ESQ.
New York State Attorney General 	Assistant Attorney General
Attorney for Defendants Corigliano,
Dinello, and Zaki
300 South State Street - Suite 300
Syracuse, New York 13202
DANIEL J. STEWART
United States Magistrate Judge
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REPORT-RECOMMENDATION AND ORDER1
On August 25, 2023, Plaintiff commenced this action pursuant to 42 U.S.C. §
1983 against Defendants David Dinello, M.D., Brandi Corigliano, N.P., and Shehab
Zaki, M.D. (collectively, the “DOCCS Defendants”), as well as Defendant Brian A.
Changlai, 	M.D. 	(“Changlai,” 	and 	together 	with 	the 	DOCCS 	Defendants, 	the
“Defendants”). 	Dkt. No. 1, Compl. 	The Complaint alleges that Defendants violated
Plaintiff’s federal constitutional rights regarding the provision of medical care that
Plaintiff received at Auburn Correctional Facility (“Auburn Correctional”), Marcy
Correctional 	Facility 	(“Marcy 	Correctional”), 	and 	Upstate 	University 	Hospital
(“Upstate Hospital”). Id.
On October 11, 2023, the District Court reviewed the Complaint and determined
that, “[a]t th[at] very early stage of the proceeding, and mindful of the Second Circuit’s
direction that a pro se plaintiff’s pleadings must be liberally construed . . . [P]laintiff’s
Eighth Amendment claims survive[d] sua sponte review,” but dismissed with prejudice
Plaintiff’s “Section 1983 claims for money damages against the named defendants in
their official capacity.”2 Dkt. No. 5.
1 This matter was referred to the undersigned for a report-recommendation pursuant to 28 U.S.C. § 636(b) and
N.D.N.Y.L.R. 72.3(c).
2 While Plaintiff’s Complaint states that “[t]his civil rights action is for deliberate indifference and gross medical
negligence against” the Defendants, Compl. at ¶ 1 (emphasis added), the initial review ordered that only Plaintiff’s
Eighth Amendment claims survived sua sponte review and required a response, Dkt. No. 5 at p. 16.
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Defendants now move for summary judgment pursuant to FED . R. CIV . P. 56
based on the merits of Plaintiff’s Eighth Amendment claim for medical indifference (the
“Motions”). Dkt. Nos. 61 & 62. Plaintiff opposes the Motions. Dkt. No. 69, Pl.’s Mem.
of Law. 	For the reasons set forth below, the Court recommends that Defendants’
Motions be granted.
I. FACTUAL BACKGROUND
A. Plaintiff’s Ingestion and Insertion of Objects, and
Defendant Dinello’s Initial Response
On December 12, 2019, while an inmate at Auburn Correctional, “Plaintiff
swallowed several foreign . . . objects” and “inserted two sewing needles into his
abdomen area.” Compl. at ¶ 10; see Pl.’s Mem. of Law at p. 2; Dkt. No. 62-4, Engles
Dep. Tr. at 31:3-32:11 (stating that Plaintiff swallowed several foreign objects,
including a sewing needle and a paper clip, on or around December 12, 2019).
“Immediately after ingesting [and] inserting these objects, Plaintiff notified security
staff that he needed ‘emergency sick call’ services, at which time Plaintiff was seen by
medical staff for examination.” 	Compl. at ¶ 10; see Engles Dep. Tr. at 38:13-39:8
(same); see also Dkt. No. 62-21 at p. 1.
Also on December 12, 2019, Defendant Dinello, the Regional Medical Director
assigned to supervise Auburn Correctional and Marcy Correctional, was notified that
Plaintiff had reported to medical staff that he had recently swallowed a paperclip,
battery, 	and 	razor, 	and 	that 	he 	had 	inserted 	a 	piece 	of 	metal 	into 	his 	urethra
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approximately sixty days prior. 	See Dkt. No. 62-20, Dinello Decl. at ¶¶ 4-5 & 9.
Plaintiff was sent to the infirmary for a contraband watch, and x-rays were ordered. See
id. at ¶ 9. That same night, see id., “under orders from . . . Defendant Dinello,” “Plaintiff
had numerous . . . x-rays taken 	of his entire abdomen[,] which 	confirm[ed]” 	the
presence of foreign objects in Plaintiff’s stomach and sewing needles “inside [the] deep
tissue[] of his abdomen.” 	Compl. at ¶ 10; see Dkt. No. 62-21 at p. 3 (noting multiple
foreign 	objects 	in 	Plaintiff’s 	abdomen, 	including 	two 	staple-like 	objects, 	a 	flat
curvilinear metallic object, a plastic spork, and an AA battery).
B. Events Following Plaintiff’s Initial X-Ray Results
The parties’ recount of what happened next differ from one another. 	Plaintiff
asserts that, notwithstanding the results of these x-rays, Defendant Dinello failed to send
Plaintiff “to an outside hospital for the removal of all foreign” objects and otherwise
“failed to provide Plaintiff with appropriate medical care [and] treatment.” Compl. at ¶
10. 	Instead, “[s]hortly after” the x-rays were taken, Plaintiff alleges that he was
“wrongfully discharge[d] off suicide [and] contraband watch [and] transferred to
Marcy” 	Correctional, 	where 	he 	was 	“placed 	under 	the 	care 	of
Defendant . . . Corigliano,” id. at ¶ 11, a Nurse Practitioner at Marcy Correctional, see
Dkt. No. 62-7, Corigliano Decl. at ¶ 2.
On the other hand, the assertions of the DOCCS Defendants attempt to add
further detail as to what occurred between Plaintiff’s initial x-ray results at Auburn
Correctional and Plaintiff’s transfer to Marcy Correctional. The medical records filed
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in support of the DOCCS Defendants’ Motion show that, following receipt of Plaintiff’s
x-ray results, Plaintiff was referred to Auburn Community Hospital (“Auburn Hospital”)
and hospitalized there from December 12, 2019, through December 14, 2019. 	See
Dinello Decl. at ¶ 10; Dkt. No. 62-21 at pp. 3 & 30. Further, the medical records show
that, during Plaintiff’s hospitalization at Auburn Hospital, Plaintiff “underwent an upper
endoscopy that resulted in the removal of two sporks and a paper clip.” Dinello Decl.
at ¶ 10; see also Dkt. No. 62-21 at pp. 16-17 (discussing foreign objects removed from
Plaintiff during endoscopy and noting that, while Plaintiff had reported that he had
“ingested a razor blade,” “there [wa]s no evidence of this type of foreign body”).
Plaintiff acknowledges that a paperclip was removed from him in December 2019. See
Engles Dep. Tr. at 43:22-25. 	The medical records also show that, during Plaintiff’s
admission to Auburn Hospital, the foreign object that Plaintiff inserted into his urethra
was removed by urology. See Dkt. No. 62-21 at p. 18. While “[a] battery was found in
[Plaintiff’s] colon, . . . it was not removed because medical staff determined that it
would pass with his bowel movements naturally.” Dinello Decl. at ¶ 10. Later medical
records indicate that the “battery . . . found [in] the colon . . . subsequently passed.”
Dkt. No. 62-21 at p. 41.
According to the DOCCS Defendants, in the months that followed, Plaintiff
repeatedly swallowed and inserted numerous other foreign objects into his body,
resulting in Plaintiff’s repeated admission to both Auburn Hospital and Upstate
Hospital. See generally Dinello Decl. at ¶¶ 12-16 & 18-20; see, e.g., Dkt. No. 62-21 at
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p. 41 (stating that, on December 27, 2019, Plaintiff had an upper endoscopy to remove
other foreign objects ingested by Plaintiff); Engles Dep. Tr. at 33:7-24 (explaining that
Plaintiff “used to” swallow foreign objections “off and on,” that doing so “is [his] MO,”
and that he “did it over 100 times”) & 45:11-18 (acknowledging that Plaintiff was taken
to Upstate Hospital in March 2020, at which point multiple foreign objects were
removed from Plaintiff). 	When Plaintiff was not admitted to Auburn Hospital and
Upstate Hospital, Plaintiff was primarily housed in Auburn Correctional’s Mental
Health Unit. See generally Dinello Decl. at ¶¶ 13 & 23.
At times, the foreign objects found in Plaintiff’s body were surgically removed
by medical staff; other times, medical staff determined that no intervention would be
done and monitoring was advised with the expectation that the foreign objects would
pass on their own. 	See generally id. at ¶¶ 12-16 & 18-20. 	According to Defendant
Dinello and Defendant Zaki, removing a foreign object from an individual’s stomach or
bowels “can, at times, be more dangerous to the individual’s health than allowing the
object to either pass naturally or remain in the body,” and so “medical judgment” was
exercised “to determine the appropriate treatment at the time.” Id. at ¶ 46; Dkt 62-16,
Zaki Decl. at ¶ 28; see also Engles Dep. Tr. at 23:2-7 (acknowledging that Plaintiff was
advised that removal of the foreign objects from Plaintiff’s body would be “riskier than
keeping [the foreign objects] inside of [Plaintiff]”).
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C. Plaintiff’s Transfer to Marcy Correctional
On July 8, 2020, Plaintiff was transferred to Marcy Correctional and admitted
into the Residential Mental Health Unit. 	Dinello Decl. at ¶ 26. 	“Immediately after
arriving at Marcy [Correctional], . . . Plaintiff complained of stomach [and] abdomen
pain due to the[] foreign [objects] still retained in [his] intestines and abdom[i]nal
walls.” Compl. at ¶ 11; see also Dinello Decl. at ¶¶ 26-27. Plaintiff alleges that, at the
time, he was “vomiting blood, . . . defecating bloody stool,” and experiencing fevers,
Compl. at ¶ 11, which the DOCCS Defendants assert is either untrue or was never
reported to medial staff, Dinello Decl. at ¶ 36.
According to Plaintiff, initially, Defendant Corigliano “refused to have Plaintiff
sent to an outside hospital,” and that decision was agreed to by Defendant Zaki, Compl.
at ¶ 11, the Facility Health Services Director at Marcy Correctional who consulted with
medical staff occasionally regarding Plaintiff’s care, see Zaki Decl. at ¶¶ 2-3 & 8.
However, 	“[a]fter 	several 	weeks 	of . . . worsening [and] 	symptoms,” 	Defendant
Corigliano “order[ed] Plaintiff to be sent to Upstate [Hospital] . . . [f]or further exams
[and] possible removal of foreign [objects].” Compl. at ¶ 12.
According to the DOCCS Defendants, nursing staff informed Plaintiff “that the
most recent x-ray did not show a surgical clamp.” Dinello Decl. at ¶ 27. Nevertheless,
nursing staff, including Defendant Corigliano, continued to monitor Plaintiff and
ordered the performance of additional x-rays. Id. at ¶¶ 27-29. The DOCCS Defendants
allege that no further action was taken at that time because Plaintiff presented as stable
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and had no concerning symptoms. 	Id. at ¶ 29; see also Zaki Decl. at ¶ 19. 	Plaintiff
acknowledges that the x-rays revealed that the foreign objects in Plaintiff’s abdomen
were stable and had not moved. See Engles Dep. Tr. at 58:17-20.
D. Plaintiff’s Admission to Upstate Hospital
On September 17, 2020, Plaintiff was admitted to Upstate Hospital. See Dinello
Decl. at ¶ 37; Compl. at ¶ 13. 	Throughout the duration of Plaintiff’s admission to
Upstate Hospital, Plaintiff alleges that he “was under the care” of Defendant Changlai,
among others who are not parties to this action. Compl. at ¶ 13.
In 2020, Defendant Changlai was employed by the Department of Medicine
Medical Service Group at the SUNY Health Science Center at Syracuse Inc. (“SUNY
Health Science Center”). 	See Dkt 61-10, Changlai Decl. at ¶ 3. 	The SUNY Health
Science Center has a contract with Upstate Hospital to provide internal medicine
services, which Defendant Changlai is not a party to. See id. at ¶¶ 4 & 6-7. Defendant
Changlai is unaware of any contracts between Upstate Hospital and the Department of
Corrections and Community Supervision (“DOCCS”), never provided medical care in a
correctional facility as part of his employment with the SUNY Health Science Center,
and never contracted with DOCCS to provide medical services. Id. at ¶¶ 8-10. As part
of Defendant Changlai’s job duties with the SUNY Health Science Center, Defendant
Changlai performed clinical work at Upstate Hospital, which included seeing patients
that were admitted to the Internal Medicine services at Upstate Hospital while Defendant
Changlai was on shift. Id. at ¶¶ 3, 5, & 12.
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Plaintiff asserts that the purpose of his admission to Upstate Hospital was for
bacterial liver abscess, ingestion of foreign objects, and other bacterial infections, which
Plaintiff alleges was the result of the foreign objects “being left untreated . . . inside [of
him].” Compl. at ¶ 13. According to the DOCCS Defendants, the purpose of Plaintiff’s
admission was for an elective esophagogastroduodenoscopy (“EGD”) to address a
paperclip that Plaintiff ingested. 	See Dinello Decl. at ¶ 37. 	The DOCCS Defendants
further assert that it was during Plaintiff’s surgery that an abscess in Plaintiff’s liver was
noted and treated at Upstate Hospital. Id. at ¶ 38.
“Plaintiff underwent surgery and interventional radiology to remove [two]
ingested paper clips and partially remove[] part of the sewing needle.” Compl. at ¶ 14;
see also Dinello Decl. ¶ 38 (stating that this procedure took place on September 19,
2020). During the surgery, Plaintiff “had to have a drain placed in his liver to drain the
. . . abscess.” Compl. at ¶ 15. “Plaintiff also needed a blood transfusion.” Id. A chest
tube was later inserted in Plaintiff’s lungs “[a]s a result of his lungs collapsing shortly
after [the] stomach surgery.” Id.; see also Dinello Decl. at ¶ 40.
Defendant Changlai asserts that he does not participate in surgeries at Upstate
Hospital, 	has 	never 	performed 	any 	surgical 	procedure 	on 	Plaintiff, 	and 	never
participated in any discussions or decision-making regarding Plaintiff’s surgeries. See
Changlai Decl. at ¶¶ 13 & 15-16. 	Further, Defendant Changlai alleges that, while he
can call for surgical consultations, that is the extent of his ability to pursue surgical
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courses of treatment for patients, and he has no ability to schedule an individual, who is
not a current patient, for surgery or any other medical procedure. Id. at ¶¶ 14 & 18.
On October 22, 2020, Plaintiff was discharged from Upstate Hospital and
returned to Marcy Correctional. 	See Compl. at ¶ 16; Dinello Decl. at ¶ 40. 	Plaintiff
asserts that his discharge from Upstate Hospital was ordered by Defendant Changlai,
see Compl. at ¶ 16, which Defendant Changlai disputes, see Dkt. No. 61-11 at ¶ 104;
Dkt. No. 61-13 at p. 8.
E. Events Following Plaintiff’s Discharge from Upstate Hospital
According to Plaintiff, following his discharge from Upstate Hospital, he has
been in “constant pain” and his hernia has grown “bigger [and] bigger,” which Plaintiff
attributes to the “portion of the sewing needle left in Plaintiff’s abdomen,” as well as
due to a surgery clamp that Plaintiff asserts the “surg[e]ons accidentally left . . . inside
[his] stomach. 	Id.; Pl.’s Mem. of Law at p. 3; see also Engles Dep. Tr. at 21:15-23
(explaining that this case pertains to “the incident with the sewing needle and the clamp
inside of [Plaintiff]”). 	While Plaintiff has been approved for further surgery, no such
surgery has been conducted as of the date the motion papers were filed in this matter.
See Compl. at ¶ 16; Engles Dep. Tr. at 68:11-12.
The DOCCS Defendants claim that they have continued to monitor Plaintiff’s
health. Dinello Decl. at ¶¶ 41-42. The DOCCS Defendants also note that Plaintiff has
occasionally refused 	medical treatment, including follow-up appointments at the
hospital. See id. at ¶ 43.
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II. SUMMARY JUDGMENT STANDARD
Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is
appropriate only where “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” F ED . R. CIV . P. 56(a). The moving
party bears the burden to demonstrate through “pleadings, depositions, answers to
interrogatories, and admissions on file, together with [ ] affidavits, if any,” that there is
no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
To defeat a motion for summary judgment, the non-movant must set out specific
facts showing that there is a genuine issue for trial and cannot rest merely on allegations
or denials of the facts submitted by the movant. F ED . R. CIV . P. 56(c); see also Scott v.
Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (“Conclusory allegations or denials are
ordinarily not sufficient to defeat a motion for summary judgment when the moving
party has set out a documentary case.”); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d
522, 525-26 (2d Cir. 1994). 	To that end, sworn statements are “more than mere
conclusory allegations subject to disregard . . . they are specific and detailed allegations
of fact, made under penalty of perjury, and should be treated as evidence in deciding a
summary judgment motion” and the credibility of such statements is better left to a trier
of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13
(2d Cir. 1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
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When considering a motion for summary judgment, the court must resolve all
ambiguities and draw all reasonable inferences in favor of the non-movant. 	Nora
Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). 	In
considering a summary judgment motion, the court’s role “is carefully limited to
discerning whether there are any genuine issues of material fact to be tried, not to
deciding them.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224
(2d Cir. 1994). “Its duty, in short, is confined at this point to issue-finding; it does not
extend to issue-resolution.” 	Id. 	Furthermore, where a party is proceeding pro se, the
court must “read [his or her] supporting papers liberally, and . . . interpret them to raise
the strongest arguments that they suggest.” 	Burgos v. Hopkins, 14 F.3d 787, 790 (2d
Cir. 1994). 	Nonetheless, summary judgment is appropriate “[w]here the record taken
as a whole could not lead a rational trier of fact to find for the non-moving party.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
III. DISCUSSION
A. State Actor
As a preliminary matter, Defendant Changlai argues that he is not a state actor
and that, consequently, Plaintiff’s claim must fail as a matter of law. See Dkt. No. 61-
13 at pp. 3-4. “To state a claim under § 1983, a plaintiff must allege the violation of a
right secured by the Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under color of state law.” West
v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted). 	“The traditional definition of
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acting under color of state law requires that the defendant in a § 1983 action have
exercised power possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.” Id. at 49 (quotation omitted). In
other words:
the deprivation must be caused by the exercise of some right or privilege
created by the State . . . or by a person for whom the State is responsible, and
the party charged with the deprivation must be a person who may fairly be
said to be a state actor.
Id. (quotation omitted). 	“[T]he dispositive issue concerns the relationship among the
State, the physician, and the prisoner.” Id. at 56.
In West v. Atkins, the defendant was “a physician employed by North Carolina to
provide medical services to state prison inmates.” 	Id. at 54. The Supreme Court held
that the defendant “acted under color of state law for purposes of § 1983” because the
defendant was “authorized and obligated to treat prison inmates” in the state-prison
hospital pursuant to a “contractual agreement” with the state, despite the fact that the
contractual agreement neither “generate[d] the same benefits or obligations applicable
to other state employees” nor “require[d] [defendant] to work exclusively for the
prison.” 	Id. at 43 & 55-56; see also Williams v. Kepro, 2023 WL 5806418, at *7
(N.D.N.Y. Aug. 8, 2023), report and recommendation adopted, 2023 WL 5806328
(N.D.N.Y. Sept. 7, 2023) (finding that defendant’s “conduct constitute[d] state action”
where the “conduct was not related to only emergency situations, nor was its review,
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isolated” because the defendant “acted according to a contract with DOCCS to perform
functions traditionally performed by the prison”).
In contrast, “a private physician or hospital has been held not to be a state actor”
where “the private entity interacted with the plaintiff in an emergent or isolated situation,
and not according to a contract with a government entity.” Williams v. Kepro, 2023 WL
5806418, at *7 (citing cases). 	For example, in Nunez v. Horn, the Court held that the
defendant was not a state actor because, unlike in West v. Atkins, the defendant: (i)
“performed his medical duties in a much more physician-controlled environment” rather
than “in the prison hospital, subject to all of the pressures and constraints resulting from
security concerns”; and (ii) “was not employed by the Bureau of Prisons, nor was he
under contract with the state to render medical services to prison inmates.” 	Nunez v.
Horn, 72 F. Supp.2d 24, 27 (N.D.N.Y. 1999). 	Similarly, in Rosseter v. Annetts, the
Court, relying on Nunez v. Horn, held that the defendant “was not a state actor” because
the defendant “performed his work outside of the jail,” was not employed by the
correctional facility, did not contract with the correction facility to treat inmates, and did
not have a referral arrangement with the correctional facility to treat inmates. Rosseter
v. 	Annetts, 	2012 	WL 	4486082, 	at 	*7 	(N.D.N.Y. 	June 	29, 	2012), 	report 	and
recommendation adopted, 2012 WL 4482858 (N.D.N.Y. Sept. 27, 2012). Instead, the
plaintiff in Rosseter was referred to the defendant because the defendant was “on call”
at the hospital at the time of the plaintiff’s “emergency room visit there.” Id.
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Here, unlike in West v. Atkins and like in Nunez v. Horn and Rosseter v. Annetts,
Defendant Changlai treated Plaintiff in the physician-controlled environment of Upstate
Hospital rather than in a correctional facility. See Dkt. No. 61-10, Changlai Decl. at ¶¶
4, 9, 11-12. Additionally, Defendant Changlai was employed by a private group—the
SUNY Health Science Center—and never contracted with DOCCS to provide medical
services. 	See id. at ¶¶ 3-10. 	Further, as part of Defendant Changlai’s job duties with
the SUNY Health Science Center, Defendant Changlai performed clinical work at
Upstate Hospital, which included seeing patients that were admitted to the Internal
Medicine services at Upstate Hospital while Defendant Changlai was on shift. See id.
at ¶¶ 3, 5, & 12. Therefore, Plaintiff has not shown that Defendant Changlai acted under
color of state law and summary judgment is therefore appropriate.3
B. Deliberate Indifference
1. Objective Component: Serious Medical Need
To state an Eighth Amendment claim, a prisoner must demonstrate that prison
officials acted with “deliberate indifference to serious medical needs.” 	Estelle v.
Gamble, 429 U.S. 97, 104 (1976). “[T]he plaintiff must allege conduct that is ‘repugnant
to the conscience of mankind’ or ‘incompatible with the evolving standards of decency
that mark the progress of a maturing society.’” 	Ross v. Kelly, 784 F. Supp. 35, 44
(W.D.N.Y. 1992) (quoting Estelle v. Gamble, 429 U.S. at 102, 105-06). 	For a claim
3 For the reasons that follow, Plaintiff has also failed to demonstrate a violation of his Eighth Amendment right
to adequate medical treatment as against Defendant Changlai.
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such as alleged here, the inmate must demonstrate (1) a serious medical condition and
(2) deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 834-35 (1994); Hathaway
v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). Deliberate indifference to serious medical
needs can be stated where “prison guards [ ] intentionally deny[] or delay[] access to
medical care or intentionally interfer[e] with the treatment once prescribed.” Estelle v.
Gamble, 429 U.S. at 104-105. 	“Plaintiff must submit some evidence that a defendant
interfered with his prescribed course of treatment and caused plaintiff to suffer pain.”
Guarneri v. Hazzard, 2010 WL 1064330, at *14 (N.D.N.Y. Mar. 22, 2010) (citation
omitted).
The first prong is an objective standard and considers whether the medical
condition is “sufficiently serious.” Farmer v. Brennan, 511 U.S. at 834 (quoting Wilson
v. Seiter, 501 U.S. 294, 298 (1991)). The Second Circuit has stated that a medical need
is serious if it presents “a condition of urgency that may result in degeneration or
extreme pain.” 	Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal
quotation marks and citation omitted). Among the relevant factors to consider are “[t]he
existence of an injury that a reasonable doctor or patient would find important and
worthy of comment or treatment; the presence of a medical condition that significantly
affects an individual’s daily activities; or the existence of chronic and substantial pain.”
Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)).
On summary judgment, the Court must view the evidence in the light most
favorable to the nonmovant. 	Donohue v. Hochul, 32 F.4th 200, 206 (2d Cir. 2022).
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Under that standard, the Court presumes, for purposes of these Motions, that Plaintiff
has adequately alleged injuries sufficiently serious to satisfy the objective prong. There
is no dispute that Plaintiff swallowed several foreign objects. See Compl. at ¶ 10 (stating
that “Plaintiff swallowed several foreign . . . objects” and “inserted two sewing needles
into his abdomen area”); Engles Dep. Tr. at 31:3-32:11 (stating that Plaintiff swallowed
several foreign objects, including a sewing needle and a paper clip, on or around
December 12, 2019); see also Dkt. No. 62-21 at p. 3 (noting multiple foreign objects in
Plaintiff’s abdomen, including two staple-like objects, a flat curvilinear metallic object,
a plastic spork, and an AA battery); Dinello Decl. at ¶¶ 10 (stating that, in December
2019, Plaintiff “underwent an upper endoscopy that resulted in the removal of two
sporks and a paper clip”) & 38 (stating that, in September 2020, Plaintiff “underwent
surgery, during which surgeons removed two ingested paperclips” and “part of a sewing
needle”).
At the very least, these conditions were sufficiently serious “that a reasonable
doctor or patient would find important and worthy of comment or treatment.” Chance
v. Armstrong, 143 F.3d at 702. 	This is only further evidenced by the DOCCS
Defendants’ statement that “[P]laintiff was constantly and consistently monitored and
observed,” “received frequent abdominal and pelvic x-rays . . . to monitor the placement
of the foreign objects,” and “was admitted for treatment at outside hospitals on several
occasions to address his ingestion/insertion of foreign objects.” Dkt. No. 62-1, DOCCS’
Mem. of Law at pp. 15-16. Likewise, Defendant Changlai acknowledges that Plaintiff
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“presented to Upstate” and “underwent surgery to remove a foreign body.” 	Dkt. No.
61-13, Changlai’s Mem. of Law at p. 7. 	The Court, therefore, turns to the second
element of a deliberate indifference claim.4
2. Subjective Component: Deliberate Indifference
The second prong of the Eighth Amendment analysis is a subjective standard
requiring a plaintiff to demonstrate that a defendant acted with the requisite culpable
mental state similar to that of criminal recklessness. Wilson v. Seiter, 501 U.S. at 301-
03; Hathaway v. Coughlin, 37 F.3d at 66. 	A plaintiff must demonstrate that the
defendant acted with reckless disregard to a known substantial risk of harm. Farmer v.
Brennan, 511 U.S. at 836. 	“In order to rise to the level of deliberate indifference, the
defendant must have known of and disregarded an excessive risk to the inmate’s health
or safety.” 	Wright v. Genovese, 694 F. Supp. 2d 137, 154 (N.D.N.Y. 2010) (citing
Chance v. Armstrong, 143 F.3d at 702). 	The defendant “must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists,
and he must also draw that inference.” Chance v. Armstrong, 143 F.3d at 702 (quoting
Farmer v. Brennan, 511 U.S. at 837). As to this element, the Court finds that summary
judgment is appropriate.
In 	Borges 	v. 	McPhillips, 	in 	assessing 	the 	plaintiff’s 	claim 	for 	medical
indifference, the court found that, “while the record establishe[d] that [p]laintiff had a
4 While Plaintiff asserts that a surgical clamp was improperly left in his abdomen, Pl.’s Mem. of Law ¶¶ 1 & 3;
Dinello Decl. at ¶¶ 26-27, there is no medical evidence supporting this assertion.
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serious medical condition . . . , he ha[d] not established that he was deprived of medical
care.” Borges v. McPhillips, 2024 WL 4442835, at *4 (N.D.N.Y. July 1, 2024), report
and recommendation adopted, 2024 WL 4035929 (N.D.N.Y. Sept. 4, 2024). 	Instead,
the court found that “the record demonstrate[d] the exact opposite” because plaintiff
“was regularly evaluated by medical staff, underwent diagnostic testing, provided with
medication, and transferred on one occasion to an outside hospital.” Id.
Here, Plaintiff’s Complaint alleges that Defendants failed to send him to an
outside hospital for the removal of all foreign objects and failed to timely remove all
foreign objects that Plaintiff ingested or inserted into his body. Compl. at ¶¶ 10-11, 14,
& 16. However, like in Borges v. McPhillips, the records evidence that, from December
3, 2019, through November 12, 2020, Plaintiff was regularly monitored by the DOCCS
Defendants, 	who recorded Plaintiff’s condition and provided Plaintiff with 	pain
medication as requested. 	See generally Dkt. Nos. 62-12, 62-15, 62-18, 62-21, 62-22,
62-23, & 62-24.
In addition, Plaintiff received several x-rays to determine the placement and
stability of the foreign objects, and the x-rays performed on Plaintiff generally revealed
that foreign bodies ingested by Plaintiff were stable or removed. See Dkt. No. 62-9 at
p. 3 (stating that x-ray taken of Plaintiff following removal of foreign bodies through
EGD on or about March 25, 2025, “showed no stomach [foreign bodies]”); Dkt. No. 62-
22 at p. 31 (noting “[u]nremarkable abdomen exam” on April 1, 2020, that found “no
evidence 	for 	obstruction,” 	“[n]o 	abnormal 	calcifications,” 	“[n]o 	evidence 	for
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organomegaly or ascites,” and “[n]o free intraperitoneal air”); Dkt. No. 62-23 at p. 5
(stating that an x-ray on June 26, 2020, revealed that Plaintiff’s “[b]owel gas pattern”
was “nonobstructive”); Dkt. No. 62-18 at p. 2 (noting that an x-ray on July 8, 2020,
indicated that two of the three linear objects in Plaintiff’s abdomen were “stable” and
had not moved since the prior study); Dkt. No. 62-11 at p. 15 (stating that an x-ray on
August 21, 2020, revealed that “foreign bodies” were “[s]table” and “essentially
unchanged when compared to the prior exam” from July 8, 2020, and that there was
“[n]o evidence of bowel obstruction”).
With regard to Plaintiff’s complaint that Defendants failed to send Plaintiff to an
outside hospital, “[t]he decision to refuse to refer an inmate to an outside specialist is
not a violation of a constitutional right.” 	Abreu v. Lake, 2018 WL 11236520, at *17
(N.D.N.Y. Jan. 22, 2018), on reconsideration in part sub nom. Abreu v. Donahue, 2018
WL 11236521 (N.D.N.Y. Mar. 13, 2018) (citations omitted). Nevertheless, the records
demonstrate that, on several occasions, Plaintiff was, in fact, admitted to hospitals to
evaluate whether the foreign objects he had ingested and inserted should be removed,
and further had foreign objects removed from him multiple times. See Dkt. No. 62-21
at pp. 16-18 (describing EGD performed on Plaintiff at Auburn Hospital on December
13, 2019, to remove foreign objects) & pp. 41-43 (describing endoscopies performed on
Plaintiff at Auburn Hospital on December 27, 2019, to remove foreign objects); Dkt.
No. 62-22 at pp. 26-29 (discussing how Plaintiff was admitted at Auburn Hospital on or
about March 25, 2020, for removal of foreign objects, but Plaintiff initially “refused to
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proceed with endoscopy”); Dkt. No. 62-10 at p. 1 (noting that Plaintiff was admitted on
June 3, 2020, to evaluate foreign objects he had ingested, and that urology removed the
foreign object from Plaintiff’s penis, but GI determined that the foreign object would
pass through Plaintiff’s GI tract such that no EGD was needed); Dkt. No. 62-27 at p. 6
(stating that Plaintiff was admitted to Upstate Hospital on September 17, 2020, for an
EGD to remove foreign objects).
To the extent that Plaintiff complains that the DOCCS Defendants did not send
him to an outside hospital fast enough or that the Defendants did not order the removal
of the foreign objects soon enough, the Court notes that, even assuming arguendo that
said delay exists, “[t]he mere delay of care without more . . . is insufficient to state a
claim of deliberate medical indifference.” 	Young v. Coughlin, 1998 WL 32518, at *5
(S.D.N.Y. Jan. 29, 1998), aff’d, 182 F.3d 902 (2d Cir. 1999) (citations omitted). “Rather
a plaintiff must show that substantial harm resulted from the delay.” Miller v. Ramineni,
2016 WL 1253684, at *9 (N.D.N.Y. Feb. 29, 2016), report and recommendation
adopted, 2016 WL 1261125 (N.D.N.Y. Mar. 30, 2016) (citation omitted). 	Further, the
Second Circuit has generally reserved classifying “a delay in providing necessary
medical care” as “deliberate indifference” for cases where “officials deliberately
delayed care as a form of punishment; ignored a life-threatening and fast-degenerating
condition for three days; or delayed major surgery for over two years.” 	Feliciano v.
Anderson, 2017 WL 1189747, at *11 (S.D.N.Y. Mar. 30, 2017) (quotations omitted).
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In Robinson v. Clark, where the plaintiff “challeng[ed] the delay between the
time that he was injured in April 2015 and the time he ultimately had surgery in
December 2015,” the court held that a delay in surgery for eight months, without more,
was insufficient to support an Eighth Amendment claim. 	2017 WL 775813, at *8
(S.D.N.Y. Feb. 27, 2017). The court noted that, during that time, plaintiff was seen by
doctors, who determined that other means of treatment were appropriate. 	See id.
Further, the court explained that, even if the “delay resulted in [p]laintiff experiencing
‘extreme’ pain for a longer duration, [p]laintiff was given [pain medication] to cope with
the pain.” Id. (citations omitted).
In Fredericks v. Borden, in evaluating plaintiff’s claim for medical indifference,
the court noted that plaintiff was seen by a doctor twice regarding his infected tooth and
that medical treatment was provided on both occasions. See Fredericks v. Borden, 2019
WL 4758275, at *5 (N.D.N.Y. Aug. 6, 2019), report and recommendation adopted,
2019 WL 4755921 (N.D.N.Y. Sept. 30, 2019). 	Further, the court found that, while
plaintiff was placed on a list to have his tooth extracted, the defendant-doctor did “not
have control over the scheduling of extraction procedures” and it was the defendant-
doctor’s 	“medical 	judgment 	that 	a 	tooth 	should 	not 	be 	extracted 	under 	such
circumstances because the extraction could cause the infection to spread and because it
was more difficult to effectively anesthetize the area which could then cause pain during
the procedure.” Id. As such, the court held that “any delay” in extracting the tooth “was
not the result of any deliberate indifference” by defendants. Id.
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Here, similar to Robinson v. Clark and as discussed in more detail above, during
the nine months between Plaintiff’s ingestion and insertion of foreign objects in
December 2019 and final surgery in September 2020, the DOCCS Defendants regularly
monitored Plaintiff, provided pain medication to Plaintiff as requested, performed
numerous x-rays on Plaintiff to determine the stability of the foreign objects that
Plaintiff had ingested and inserted into his body, and admitted Plaintiff to hospitals for
the removal of foreign objects on multiple occasions. See supra pp. 19-21. Further, like
in Robinson v. Clark and Fredericks v. Borden, the DOCCS Defendants reasonably
exercised their medical judgment in determining whether Plaintiff should be sent to a
hospital for removal of foreign objects or if, instead, foreign objects should remain in
Plaintiff’s body with the potential for them to pass naturally, as removal of foreign
objects “can, at times, be more dangerous to the individual’s health than allowing the
object to either pass naturally or remain in the body.” 	See Dinello Decl. at ¶ 46; Zaki
Decl. at ¶ 28. “[T]he ultimate decision of whether or not to administer a treatment . . . is
a medical judgment that, without more, does not amount to deliberate indifference.”
Crouch v. Spaulding, 2019 WL 1004539, at *4 (N.D.N.Y. Jan. 24, 2019) (quotations
omitted), report and recommendation adopted, 2019 WL 1004357 (N.D.N.Y. Mar. 1,
2019).
In addition, there is no evidence that any delay was at all due to any action by
Defendant Changlai. To the contrary, Plaintiff has not disputed Defendant Changlai’s
claim, like that of the defendant in Fredericks v. Borden, that Defendant Changlai does
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not participate in surgeries and has no ability to schedule an individual, who is not a
current patient, for surgery or any other medical procedure. Changlai Decl. at ¶¶ 13-16
& 18.
In sum, while Plaintiff claims that Defendants failed to provide proper treatment,
Compl. at ¶ 17, “disagreements over medications, diagnostic techniques (e.g., the need
for X-rays), forms of treatment, or the need for specialists . . . are not adequate grounds
for a Section 1983 claim.” 	Borges v. McPhillips, 2024 WL 4442835, at *4 (citations
and quotations omitted). “Plaintiff can point to nothing other than disagreements about
the course of his care to support his contention that he was not adequately treated, but
because it is well-established that mere disagreement over the proper treatment does not
create a constitutional claim, summary judgment on this ground is appropriate.” 	Id.
(quotation omitted).
C. Qualified Immunity
Defendants all claim that they are entitled to qualified immunity. 	DOCCS’s
Mem. of Law at pp. 35-38; Changlai’s Mem. of Law at pp. 10-11. 	The doctrine of
qualified immunity shields public officials from suit for conduct undertaken in the
course of their duties if it “does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” 	Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). Whether an official protected by qualified immunity may be held
liable for an alleged unlawful action turns on the objective legal reasonableness of the
action assessed in light of the legal rules that were clearly established at the time the
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action was taken. Anderson v. Creighton, 483 U.S. 635, 639 (1987); Lewis v. Cowan,
165 F.3d 154, 166 (2d Cir. 1999).
“Where . . . a plaintiff cannot . . . show[] . . . a violation of constitutional rights,
no further inquiry is necessary because where there is no viable constitutional claim,
defendants have no need of an immunity shield.” Laurent v. Edwin, 528 F. Supp. 3d 69,
91 (E.D.N.Y. 2021) (quotations omitted); see also Tatta v. Wright, 616 F. Supp. 2d 308,
321 (N.D.N.Y. 2007). Here, as in Laurent v. Edwin, “the Court finds that Plaintiff fails
to meet the threshold question because,” as explained in more detail above, Plaintiff
“cannot show that Defendant[s] acted with deliberate indifference in violation of
Plaintiff’s constitutional rights.” Laurent v. Edwin, 528 F. Supp. 3d at 91.
“While no further inquiry is necessary, the Court also finds that Plaintiff cannot
show that Defendant violated a clearly established right.” Id. “To be clearly established,
[t]he contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Id. (quotations omitted). In Perez
v. County of Westchester, the court held that the defendants “did not violate any clearly
established federal rights” because “they exercised their medical judgment when
treating [plaintiff] during the time period at issue.” 83 F. Supp. 2d 435, 440 (S.D.N.Y.),
aff’d, 242 F.3d 367 (2d Cir. 2000). 	The court further noted that “‘[t]he decisions of
physicians regarding the care and safety of patients are entitled to a presumption of
correctness.’” Id. (quoting Kulak v. City of New York, 88 F.3d 63, 77 (2d Cir. 1996)).
Likewise, in Johnson v. Kachelmeyer, the court found that “[d]efendants’ treatment of
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[p]laintiff was reasonable and adequate” and held that “[d]efendants [we]re entitled to
qualified immunity on [p]laintiff’s claim that he was denied adequate care” because
defendants “examined [p]laintiff several times . . . , they evaluated and assessed his
condition, they provided ongoing medical treatment, including pain management
medication and medical tests, and they ordered a precautionary X-ray examination.”
2006 WL 625837, at *11 (W.D.N.Y. Mar. 9, 2006).
Here, given the Court’s recommendation with respect to the merits of the Eighth
Amendment claim, the Court recommends that qualified immunity would serve as an
additional basis for granting summary judgment to the Defendants. 	While there is no
question that Plaintiff had a clearly established right to adequate medical care, given the
medical evidence available to Defendants, they exercised sound medical judgment in
treating Plaintiff and could not have reasonably known that the course of treatment
pursued would constitute a denial of Plaintiff’s constitutional right to medical care.
Further, it cannot be said that no medical professional of reasonable competence would
have taken the same actions in similar circumstances. In fact, during the relevant period,
some of the foreign bodies ingested by Plaintiff passed naturally without the need for
further intervention or surgery. 	See, e.g., Dkt. No. 62-21 at p. 41 (indicating that the
battery found in Plaintiff’s colon, which was not removed because medical staff
determined that it would pass with his bowel movements naturally, subsequently
passed); Dkt. No. 62-12 at pp. 16-17 (discussing how, on July 24, 2020, Plaintiff was
observed swallowing a headphone cord and, on July 27, 2020, Plaintiff presented the
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headphone cord to officials and stated that he had pulled the headphone cord out of his
butt). Judgment on the ground of qualified immunity is therefore also appropriate.
IV. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Defendants’ Motions for Summary Judgment (Dkt.
Nos. 61 & 62) be GRANTED; and it is further
ORDERED, 	that 	the 	Clerk 	of 	the 	Court 	serve 	a 	copy 	of 	this 	Report-
Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days5 within
which to file written objections to the foregoing report. Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. 	Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human
5 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the
fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and
file objections. F ED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal
holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.
FED. R. C IV. P. 6(a)(1)(C).
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Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED . R. CIV . P. 72
& 6(a).
Dated: December 8, 2025
Albany, New York
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