Nunez v. Bentivegna

Background

Toby Nunez, as administratrix of the estate of Raul A. Nunez, brought this action under 42 U.S.C. § 1983. The complaint alleged that Robert Bentivegna, Kyoung S. Kim, Mary Ashong, Albert Acrish, William Miller, and Leslie Carey were deliberately indifferent to Raul Nunez’s medical needs, violating the Eighth Amendment while he was incarcerated at Green Haven Correctional Facility.

Raul Nunez transferred to Green Haven in January 2018. Beginning in 2019, he reported worsening back and leg pain, numbness, stomach pain, fever, night sweats, loss of appetite, substantial weight loss, weakness, and fainting. Green Haven medical personnel saw him more than ten times, ordered X-rays and other testing, prescribed or recommended medications, and referred him to medical appointments. On June 25, 2019, Dr. Kim sent him to an emergency room, where he was diagnosed with pancreatic cancer. He later died on August 10, 2019.

After discovery, the defendants moved for summary judgment under Federal Rule of Civil Procedure 56. The plaintiff opposed that motion and separately moved to preclude the report of the defendants’ expert, Dr. Mark Korsten, under Federal Rule of Evidence 702.

Deliberate-Indifference Claim

A claim that prison officials were deliberately indifferent to serious medical needs has an objective component and a subjective component. The objective component concerns whether the prisoner was deprived of adequate medical care and whether the deprivation was sufficiently serious. The subjective component requires evidence that each defendant actually knew of and disregarded a substantial risk of serious harm. Negligence, a mistaken diagnosis, or a disagreement about the proper treatment is not enough by itself.

For purposes of summary judgment, the court assumed that the plaintiff satisfied the objective component. It held, however, that the plaintiff had not produced evidence allowing a reasonable jury to find that any defendant had the required state of mind. The court found that the record showed repeated medical visits, testing, medication, referrals, and an eventual hospital referral. In the court’s view, the evidence at most suggested negligence, not deliberate indifference.

The court separately addressed each group of defendants. It held that Carey’s response to an early grievance, based on the medical records and an upcoming primary-care appointment, did not show that she knew deferring care created a substantial risk of serious harm. The court held that Dr. Kim’s treatment at the May 28, 2019 appointment—including changing pain medication and ordering X-rays—did not support an inference that he knowingly disregarded such a risk. The court also stated that an alleged failure to perform a proper examination or diagnose pancreatic cancer, even if negligent, did not by itself establish an Eighth Amendment violation.

As to Miller, the court held that referring Nunez to his primary-care provider within one week, rather than arranging a same-day physician visit, could at most constitute negligence. As to Dr. Bentivegna, the court found that reviewing Nunez’s records, directing him to follow up with Dr. Kim, and ordering an electromyogram did not create a triable issue about deliberate indifference. As to Ashong and Acrish, the court found that they examined Nunez, ordered or reviewed testing, provided medication or other accommodations, and referred him to his upcoming primary-care appointment. Their notes minimizing the severity of his symptoms did not establish that they actually knew their treatment created a substantial risk of serious harm.

Qualified Immunity

The defendants also asserted qualified immunity, which can protect government officials from damages when their conduct did not violate a constitutional right. Because the court found that the evidence did not establish a violation of Nunez’s Eighth Amendment rights, it held that the defendants were entitled to qualified immunity on the deliberate-indifference claims.

Motion to Preclude Expert Report

The plaintiff argued that Dr. Korsten’s report was inadmissible because it repeatedly addressed whether the defendants departed from the standard of care without adequately establishing that standard. The court denied the motion to preclude as moot. It stated that the report shed little light on the defendants’ mental state, had played no role in the decision, and therefore did not require an admissibility ruling.

Disposition

Judge Loretta A. Preska granted the defendants’ motion for summary judgment and dismissed the plaintiff’s deliberate-indifference claims. She denied the plaintiff’s motion to preclude the expert report as moot. The court directed the Clerk to close the motions and mark the case as closed, and directed that all pending motions be marked denied as moot.