The opinion of the court was delivered by: LOUIS F. OBERDORFER
Plaintiff has been incarcerated since 1978, serving a sentence imposed for Burglary, Rape, Sodomy and Armed Robbery. Since his original incarceration, he has been transferred to at least two federal facilities and is presently under the control of the District of Columbia Department of Corrections. See Plaintiff's Second Supplemental Memorandum in Opposition to Defendant's Motion for Summary Judgment ("Plaintiff's Second") at 1.
In late 1980, while in the custody of the District of Columbia, plaintiff was diagnosed as suffering from Chronic Open Angle Glaucoma. See Plaintiff's Second, Ex. A, ("Cox Aff.") P 13. Glaucoma is a "degenerative disease of the optic nerve generally characterized by intraocular pressure." Plaintiff's Second at 2. In severe cases the pressure may result in "eye pain, headaches, nausea, and vomiting." Plaintiff's Second, Ex. B ("Javitt Aff.") P 11. Untreated, glaucoma inevitably progresses to blindness. Id. P at 10. Further, since "vision loss in glaucoma occurs over a protracted period, it is essential that pressure-lowering treatment be maintained on a regular and continuous basis without interruption." Id. P 13. The two drugs named as treating glaucoma are Timoptic and Propine. Id. at PP 14-15. Failure to administer either or both drugs, "when prescribed, is likely to enhance the possibility of visual field damage in patients with increased intraocular pressure." Id. at P 16.
In plaintiff's case, after diagnosis, he was treated with Timoptic, see Cox Aff. P 14, and later given an additional prescription for Propine. Id. at P 15. Cox was advised that glaucoma should be treated seriously and that diligent application of his medicines was required. Id. at P 16. Cox claims
that between 1980 and 1984, before his transfer to the Federal prison system, he was deprived of a timely refill for his prescriptions on approximately five occasions, with each interval lasting between three and five days. See Cox Aff. P 17. Between September 1988 and May 1989 plaintiff alleges another approximately seven occasions without medication and again, the delays were between three and five days. Id. at P 18. Finally, between February 1990 and January 1991, plaintiff contends that he was deprived of timely refills for his medicines on another seven occasions; these periods lasted from eight to fourteen days each. Id. at P 19(a)-(c). Cox states that at all times he had timely and properly requested refills of his medication prior to the deprivation and subsequently filed the appropriate administrative complaints. Id. at PP 17-19. Plaintiff argues that as a direct result of the deprivations he has suffered "great mental anguish and fear, . . . substantial physical pain in his head and eyes, as well as blurred vision." Plaintiff's Second at 6.
The instant Complaint was filed pro se on October 16, 1990 and an amended Complaint followed on December 6, 1990 alleging a violation of plaintiff's Eighth Amendment rights to be free from "cruel and unusual punishment." On January 2, 1991, in response to what Cox claims were further failures to provide his medication, he filed a Motion for Temporary Restraining Order and/or Preliminary injunction. As a result of a January 15, 1991 hearing on that Motion, defendant was ordered to submit a plan for the adequate stocking of the necessary medication Propine. Cox admits that since the filing of the plan defendant has provided timely refills of the required medication. Cox Aff. P 31. On June 17, 1991, defendant moved for summary judgment; plaintiff responded. On September 4, 1991, pro bono counsel was appointed in this matter and supplemental Memoranda were submitted on March 27, 1992 and April 10, 1992 and a hearing was held on the Motion for Summary Judgment on April 13, 1992. The Motion may now be decided.
The essence of plaintiff's Complaint is that the District of Columbia, Department of Corrections failed to provide him with his medication, Timoptic and later Propine in a timely manner. To support this main claim, and apparently to bolster his allegations that his medical treatment was inadequate, the plaintiff asserts that defendants also delayed in providing him with prescription glasses and did not speedily treat an ear infection. See Plaintiff's Opposition to Summary Judgment ("Plaintiff's First"). The District of Columbia has filed a motion for summary judgment; in order to succeed at this stage, the defendants must demonstrate that there is no need to submit the claim to a jury because the undisputed facts show that the defendant is "entitled to judgement as a matter of law." Fed. R. Civ. P. 56(C).
Cox, however, must necessarily only establish that there is a genuine issue of material fact. The test was established in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (citation omitted) noting that "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." id. at 255. Additionally, Cox must also show that he has evidence that will support each essential element of his claim. See Celotex v. Cattret, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
Plaintiff bases his charges on the claimed underlying violation of the Eighth Amendment
guaranteeing him medical care that meets his needs while imprisoned. See Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). To rise to the level of a constitutional violation of a prisoner's Eighth Amendment rights however, there must be some evidence of "deliberate indifference to serious medical needs of prisoners" or that amount to the "'unnecessary and wanton infliction of pain.'" Id. at 104 quoting Gregg. v. Georgia, 428 U.S. 153, 182-83, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976).
Essentially, the Estelle test is a two-pronged standard requiring both a serious medical need evidenced by the prisoner and deliberate indifference on the part of the prison officials. See Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980); West v. Keve, 571 F.2d 158, 161 3d Cir. 1978). A medical need qualifies as serious if it is "one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Ramos, 639 F.2d at 575, quoting Laaman v. Helgemoe, 437 F. Supp. 269, 311 (D.N.H. 1977). In the instant case, this standard has been met. Cox has stated, and the District of Columbia acknowledged that the plaintiff suffers from glaucoma, ...