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Matter of Morrow v Wright 2010 NY Slip Op 30539(U) March 3, 2010 Supreme Court, Albany County Docket Number: 655-09 Judge: George B. Ceresia Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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STATE OF NEW YORK SUPREME COURT

COUNTY OF ALBANY

In The Matter of the Application of JEFFREY MORROW, Petitioner, For A Judzment Pursuant to Article 7 8 of the Civil Practice Law and Rules, -againstLESTER WRIGHT, DEPUTY COMMISSIONEWCHIEF OFFICER; CORC CENTER OFFICE REVIEW COMMITTEE, Respondents.

Supreme Court Albany County Article 78 Term Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding RJI ## 01-09-ST0006 Index No.655-09 Appearances : Jeffery Morrow Inmate No. 02-A-0469 Petitioner, Pro Se Attica Correctional Facility Box 149 Attica, NY 1401 1-0149
2ndrcv hl. Cuomo

Attorney General State of New York Attorney For Respondent The Capitol Albany, New York 12224 (C. Harris Dague, Assistant Attorney General of Counsel)
DECISION/ORDER/JUDGMENT

George B. Ceresia, Jr., Justice

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The petitioner, an inmate at Attica Correctional Facility, has commenced the instant CPLR Article 78 proceeding to review an adverse grievance determination of the Central Office Review Committee ("C0RC")with regard to the adequacy of medical treatment provided to him in connection with his cervical spine and lumbar spine. In the grievance dated August 27,2008, the petitioner requested that he be given a specific pain medication, that he be scheduled to see a neurologist and pain specialist, and that he receive an MRI. These requests stem (at least in part) from a neck injury that petitioner suffered on May 17, 2007 that resulted in nerve damage to his right arm, hand and finger and the left side of his face. The petitioner underwent a discectomy at C6-7 in November 2007. In June 2008 petitioner was diagnosed by Dr. Joseph M. Kowalski as having a collapsed disc in his lower back (L5-S 1), and moderate prominent spondylosis. Dr. Kowalski recommended the course

of treatment that petitioner requested in his grievance, including an MRI for his lower back,
and a CAT scan for his cervical spine. The grievance was denied by the Inmate Grievance Resolution Committee on September 9, 2008. The grievance determination recited as follows: "This inmate has an appointmeiit with a clinician t w y soon and all of his medical issues can be addressed at that time. Specialists make recommendations but the final determination of inmates medical needs are made by his primary care physician. Physicians here at Attica are fully aware of his medical issues." The petitioner appealed to the Superintendent, who also denied the grievance in a decision dated October 20, 2008 which recited as follows:

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"You have been seen by the FHSD and pain medications have b w i prucribed. At this point, there is no evident medical need for referral for another MRI or referral to specialists. If such
need becomes evident, theses referrals will be made. You are appropriately being followed and treated by the FHSD." The petitioner then appealed to CORC, which denied the appeal in a decision dated November 29, 2008 which recited as follows:

"Upon full hearing of the facts and circumstances in the instant case, and upon recommendation of the Division of Health Services, the action requested herein is hereby accepted only to the extent that CORC upholds the determination of the Superintendent for the reasons stated. "CORC notes that the grievant was referred for an MRI on 6/16/08 and 7/21/08, however, both requests were denied by APS because other treatment options had not been attempted. Subsequently, the grievant began Physical Therapy (PT) in August of 2008, however, it was discontinued on 9/26/08 because the grievant indicated that it was not helping the pain. On 10/22/08, [he] saw the FHSD and had his prescription for Neurontin increased. "CORC advises the grievant to follow the treatment plan outlined by Health Services. Contrary to the grievant's assertions, CORC has not been presented with sufficient evidence to substantiate any malfeasance by staff. "CORC asserts that, consistent with Health Services Policy Manual Item # 1.2 1 - Health Care Referrals, the Facility Health Services Directors (FHSD) have the sole responsibility for providing treatment to the inmates under their care. The FHSDs have the responsibility of determining what outside health referrals are needed by the target population. Outside specialists may only make recommendations for treatment; however, the implementation of those recommendations is at the discretion of the FHSDs, based on their professional judgment." "Judicial review of administrative decisions denying inmate grievances is limited to

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a determination of whether the challenged determination is irrational, arbitrary or capricious" (Matter of Ha? v Goord, 3 AD2d 701, 702 [3rdDept., 20041 quoting Matter of Cliff v

Brad?, 290 AD2d 895 [2002], lv denied, lv dismissed 98 NY2d 642 [2002]; Matter of Cliff v Eaaen, 272 AD2d 687 [2000]; see also Matter of Clark v Fischer, 58 AD3d 932 [3rdDept., 20091). Phrased differently, "[tlo prevail, petitioner must demonstrate that the Central Office Review Committee's determination was arbitrary and capricious or without a rational basis" (Matter of Pate1 v Fischx, 67 AD3d 1193 [3rd Dept., 20091 citing Matter of Keesh
v Smith, 59 AD3d 798,798 [2009]; Matter of Green v Bradt,

AD3d

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2010 NY Slip

Op617 [3`dDept.,January28,2010];MatterofFrejomilvFischer, 68AD3d 1371 [3rdDept., 20091; Matter of Matos v Goord, 27 AD3d 940, 941 [2006]). Notably, "[als a dependent of the State, `[a prison inmatelis entitled to essential, not optimal, care' (Matter of McLaughlin v Wing. 255 AD2d 954, 955), there being no `obligation to provide inmates with medically unnecessary services' (Matter of Smith v Alves, 282 AD2d 844, 845)" (Matter of Jarvis v Pullman, 297 AD2d 842, 843 [3d Dept., 20021; see also Matter of Pittman v Portuondo, 307 AD2d 485,485-486 [3d Dept., 20031). Moreover, a referral for further tests is required only if the Facility Health Services Director determines that it is necessary (see Matter of Davis v Goord, 7 AD3d 889, 890 [3d Dept., 20041). There is no evidence that this is the case here. The record reveals that the petitioner has been closely followed by his primary care physician, who has engaged in a conservative mode of treatment. This includes a recommendation for physical therapy, which was prescribed in August 2008, as well as medication for pain relief. From the chronology submitted by the petitioner it is clear that
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he has been seen on multiple occasions by facility medical staff for consultation and treatment. Pain medication was prescribed, albeit not necessarily the medications or dosages which the petitioner requested. The Court finds that the petitioner did not present evidentiary support for his claim that he is not receiving adequate medical treatment, (E Ross v Goord, 262 AD2d 883,884885 [3d Dept., 19991, app dismissed 93 NY2d 1039 [1999], Held: The petitioner's conclusory allegations were insufficient to establish improper or inadequate medical treatment]). Nor has the petitioner demonstrated a deliberate indifference to his serious medical needs in violation of the Eighth Amendment of the United States Constitution (see Matter of Scottv Goord, 32 AD3d 638,638-639 [3rdDept., 20061; Ross v Goord, 262 AD2d 883, 884-885 [3d Dept., 19991, citing Matter of Allah v White, 243 AD2d 913 [3d Dept., 19971). As such, the petitioner failed to demonstrate that the denial of his grievance was affected by an error of law or was arbitrary and capricious and/or that the physician's assessments in that regard were incorrect

(see Matter of Davis v Goord, 7 AD3d 889,889-

890 [3d Dept., 20041, citing Matter of Sincrh v Eagen, 236 AD2d 654.655 [ 19971; see also Matter of Scott v Goorcl, suma). During the pendency of the instant proceeding the petitioner made a motion to submit supplemental pleadings relating to events that occurred since commencement of the instant proceeding. He indicates that on September 28,2009 he had an MRI of his left knee', which revealed a torn left medial meniscus; and an MRI of his lumbar spine, which was positive

'It appears that the knee injury is the result of a fall shich occurrcd subsiequeIlt to

commencement of the instant proceeding.
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for degenerative disc disease L5-S 1 with disc herniation at L5-S I . His doctor, G. Coniglio,

M.D., recommended an epidural steroid injection with regard to the disc herniation. Records
submitted by the petitioner indicate that on November 4,2009 he underwent arthroscopy of his left knee, and that on the same date he received an epidural steroid injection into his spine. The Court finds that the papers submitted on the motion are of an evidentiary nature, not requiring incorporation into a supplemental pleading. For this reason, the motion will be denied. The Court has, however, reviewed and considered the papers which were submitted by the petitioner in connection with the motion, and finds that they are supportive

CORC's determination that petitioner's medical needs are being adequately addressed.
The Court finds that the determination was not made in violation of lawful procedure, is not affected by an error of law, and is not irrational, arbitrary and capricious, or an abuse

of discretion. The Court concludes that the petition must be dismissed.
Accordingly. it is

ORDERED, that the motion to submit a second supplemental pleading is denied; and
it is
ORDERED arid ADJUDGED, that the petition be and hereby is dismissed.

This shall constitute the decision, order and judgment of the Court. The original decision/order/judgment is returned to the attorney for the Respondent. All other papers are being delivered by the Court to the County Clerk for filing. The signing of this

decision/order/judgment and delivery of this decision/order/judgment does not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.
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ENTER
Dated: March 3 ,2010 Troy, New York

' Supreme Court Justice

Papers Considered:
1.

2. 3. 4.

Order To Show Cause dated January 28 2009, Petition, Supporting Papers and Exhibits Respondent's Answer dated August 6,2009, Supporting Papers and Exhibits Petitioner's Reply to Respondent's Answer, dated September 9, 2009 Petitioner's Notice of Motion dated December 15, 2009, Supporting Papers and Exhibits

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