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Friday, October 19, 2012
We are a dog family...at one time we had four. All herding breeds (3 German Shepherds and Cattle Dog). A year ago we found ourselves down to one - a 7 year old female shepherd, Kay. Now Kay was still what I considered active and we knew that we wanted to add another Shepherd to keep her company. We considered adopting, but the rescue groups won't home a dog with children under 7 (our daughter just turned 5) and Kay has some dog "issues" and an adult dog would really have to be the right fit. So when we introduced my mother's Corgi puppy to Kay and she did great, we decided, puppy it would be. Now, it's been 7 years since we had a puppy and while Kay is active, I wouldn't call her busy and our life was fairly predicable and calm - something I knew would change. But maybe that was the shove I would need to get up early and walk more and a puppy could be the running buddy that Kay's hips prevented her from being. At the beginning of July we got Dexi, a female working line Shepherd puppy..
Flash forward 3 months...we've gotten past the middle of the night puppy wake-ups. We are at a mangeable point in housebreaking (any issues can be attibuted to lack of proper attention on our parts). And Dexi has certainly been a shove in the butt! Missing a morning walk or evening walk, especially during the work week when she is confined longer has obvious ramifications...that tend to involve double the effort at redirection of naughtiness and alot of "Dexi, No" from all of us!
She is fiesty, funny and when old enough will be my running buddy! In the meantime I mostly enjoy the chaos she brings - even though that means my alarm clock goes off at 5:30 AM so we get a walk in despite the dark and anyone with a Shepherd can attest to the fact that walking a Shepherd is not a leisurely stroll - it is an athletic event. Dexi's natural gait is a trot...I sweat.
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Welcome to the Gallatin Arts Festival site. We are currently accepting artist submissions for GAF 2017! Please visit the "Apply for GAF 2017" tab to submit your work. We are looking for artists of all varieties–visual, performing, and interdisciplinary. All current Gallatin students, undergrad or graduate, are welcome to apply. Collaborators do not have to be from Gallatin so long as the submission's point of contact is a Gallatin student.
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Arkada Hotel Praha, in a building of the Art Nouveau style, is located only a four minute walk from the Wenceslas Square. It features a meeting room and restaurant.
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27 acres in Benton County, Arkansas
Great Commercially viable property just off of Walton Blvd. Property adjoins the Fountain Plaza Development. 47.26 Acres Total Available. for additional acerage see ML 738057,Could be purchased in 13.5 -- 20 acre tracts. Land is fairly open and level. Prime for development to utilities at the Street. Sewer is 1500 Ft. away.
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The League of Women Voters, a nonpartisan political organization, encourages the informed and active participation of citizens in government, works to increase understanding of major public policy issues, and influences public policy through education and advocacy.
We meet at areas around the county to discuss a monthly topic. In December, we will discuss program planning.
All members and prospective members are welcome to attend any meeting.
The first meeting is the LWVFA Briefing and At-Large Meeting. December Program Topic: Program Planning Contact: Sherry 703-730-8118 Saturday, December 3, 2016 10 a.m. to 12 p.m.
League Conference Room Packard Center (inside Annandale Community Park) 4026 Hummer Road Annandale, VA 22003
The other unit meetings will take place across the county from December 8th to December 14th. To see a full list, click here.
Registration is now open for LWV-VA's annual WLRT Pre-session at the Capitol in Richmond. Various advocacy groups will make presentations on their agendas for the upcoming legislation session in an attempt to find areas of mutual concern.
Wendy Fox-Grage, LWVFA Co-President, is coordinating carpools to Richmond. Please email her if you have questions: firstname.lastname@example.com.
The deadline to register for the luncheon is November 30th.
For details about WLRT, including the luncheon, click here.
Our December Fairfax VOTER Newsletter features Program Planning for LWV-VA and LWVNCA for 2017-19: What's Your Opinion?, a Voter Services Report about LWVFA's work in 2016, fracking, and our December Unit calendar.
It's time to think about what you would like the Leagues of Women Voters of Virginia (LWV-VA) and the National Capital Area (LWVNCA) to pursue in their 2017-19 biennium. This year we are returning to the tradition of having this discussion at our December unit meetings, rather than at a General Meeting. We ask the units to combine this discussion with any special meeting plans they may have for December.
December Program Planning Article, LWVNCA Program Planning for 2017-19, and LWV-VA Program Planning for 2017-19
For a calendar of meetings, click here.
Click here to learn more about LWVFA's action.
Here is the link to the complete article: Fairfax County 'Committed to Celebrating Diversity Under New Administration'
The film, narrated by Katie Couric, examined gun violence prevention in America by focusing on several of the gun tragedies in the U.S.
Moderated by Ruth Hoffman, co-chair of the League of Women Voters' Firearms Safety Task Force, the panel discussion after the film included speakers Matt Bennett, one of the original founders of Third Way, a D.C.-based centrist think tank and advisor to the Sandy Hook families; and Peter Read, retired U.S. Air Force officer whose daughter Mary Karen Read, age 19, was killed during the Virginia Tech shootings in 2007. "You hear that this issue is a difficult political issue, but that shouldn't be an excuse for inaction," said Hoffman. "We cannot be complacent...I hope everyone will walk away from this conversation wanting to be part of the conversation. I know there's some middle ground."
Read the rest of the article: "LWVFA's Under the Gun Forum Makes Cover of "The Connection in McLean
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August 2, 2010
JOHN COOKE, PLAINTIFF,v.STERN, SUPT. PROGRAMS, BARE HILL CORRECTIONAL FACILITY,*FN1 AND MS. S. FLANAGAN, DEFENDANTS.
This matter was referred for Report and Recommendation, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c), by the Honorable Gary L. Sharpe, United States District Judge. On January 4, 2010, the case was re-assigned to me, following the retirement of Magistrate Judge Gustave J. Di Bianco.
In this amended civil rights complaint ("AC"), plaintiff alleges that the two remaining defendants*fn2 were deliberately indifferent to his health and safety when they improperly assigned him to a particular work detail at Bare Hill Correctional Facility ("Bare Hill") that was not appropriate, given his physical disability. (Dkt. No. 7). Plaintiff, now released from custody, seeks substantial monetary damages. (Id.).
Presently before this court is defendants' second motion for summary judgment, pursuant to FED. R. CIV. P. 56. (Dkt. No. 24). Defense counsel argues that neither name defendant was personally involved in the decision to assign plaintiff to his work program, and that plaintiff cannot establish that the defendants were deliberately indifferent to his health and safety.
Plaintiff initially failed to respond to the second summary judgment motion. Upon learning of the possibility that plaintiff had not received the motion*fn3 , the court took steps to verify plaintiff's current mailing address and to serve him (perhaps for a second time) with the relevant papers. (See Text Orders dated 7/14/2010 & 7/20/2010). Only July 26, 2010, plaintiff submitted a confirmation of his new mailing address and provided some documents responsive to the summary judgment motion.
(Dkt. No. 29). On July 27, 2010, plaintiff telephoned my chambers to confirm his receipt of defendants' summary judgment motion, and to advise the court that he did not intend to file any further response. (See Text Order dated 7/27/2010).
Although this court originally gave plaintiff until August 20, 2010 to file a response to the summary judgment motion, it is ripe for decision now, given that plaintiff has indicated that he does not intend to file any further response. For the following reasons, this court recommends that the defendant's motion for summary judgment be granted and the sole remaining claim in the amended complaint dismissed in its entirety.
I. Facts*fn4
Plaintiff's right foot and some of his right leg were amputated and replaced by a prosthesis shortly before he was returned to state prison in August 2007, following a parole violation. (Pltf. Deposition ("Dep.") at at 27-28, 31-33, Dkt. No. 24-4). Plaintiff claims that, on August 18, 2007, he was assigned to work as a cook in the mess hall at Bare Hill by defendant Sharon Flanagan, who was in charge of the Program Committee. (AC, Dkt. No. 7 at 1*fn5 ; Dep. at 22-25, 46-47, 56-61). Plaintiff states that he asked the Program Committee not to be assigned to the mess hall because it was difficult for him to stand and walk on his prosthetic leg, and because he didn't want "to move around and put pressure on [that] leg . . . ." (AC at 1, 7; Dep. at 22-24). Plaintiff asked to work in the commissary or at a job outside, but the sergeant stated that neither job was available. (Dep. at 60-61). One of the female committee members then told plaintiff there was an opening for a cook in the mess hall, and "you take it or you do not take it." Plaintiff said he would take it because he knew he would not be at Bare Hill "for long." (Dep. at 61).*fn6
Defendants have submitted documentation indicating that plaintiff actually met with the Bare Hill Program Committee on August 16, 2007, not Saturday, August 18th, as plaintiff contended. (Flanagan Aff., Dkt. No. 24-3, ¶¶ 5-8, 11-13 & Ex. A; Stearns Aff., Dkt. No. 24-2, ¶¶ 13-16, 25-26 & Ex. A).*fn7 According to plaintiff, a male sergeant and two women were committee members that day. (Dep. at 24-25, 56-57). Plaintiff knew that "Ms. Flanagan was in charge of the program . . ." (Dep. at 58), and believed that she was the woman who appeared to be running the committee meeting. (Dep. at 57-59, 63-64). Plaintiff could not describe the woman at the meeting he believes was Ms. Flanagan, except to note she was " Caucasian." (Dep. at 63-64).
Defendant Flanagan was, in fact, in charge of the program committee and would normally preside at meetings to make program assignments to inmates. (Stearns Aff. ¶ 20; Flanagan Aff. ¶ 10). However, defendants submitted extensive documentation indicating that defendant Flanagan was not at work on August 16, 2007, and did not participate in the meeting that resulted in plaintiff's assignment to work in the mess hall. (Flanagan Aff. ¶¶ 5-10, 14-19, & Exs. A, B; Stearns Aff. ¶¶ 13-16, 18-24, & Exs. A, B).*fn8 The record documenting the decision of the Program Committee assigning plaintiff to the mess hall detail was dated August 16, 2007 and was signed by someone other than defendant Flanagan, who would, as the committee chair, sign such forms on days that she worked. (Flanagan Aff. ¶¶ 5-10 & Ex. A).
Defendant Stearns was the Deputy Superintendent for Program Services at Bare Hill, and supervised the Program Committee. However, he was "not a member [of that committee] and ha[d] no direct involvement in its meetings and decisions." (Stearns Aff. ¶ 9). He "was not present at the Committee meeting [on August 16th] and had nothing to do with the Committee's decision to assign Cooke to the mess hall." (Stearns Aff. ¶ 17). Plaintiff admitted as much during his deposition. (Dep. at 75, 82).*fn9
About a week before plaintiff met with the Program Committee, he had been cleared by the medical department at Bare Hill to work in the mess hall. (Stearns Aff. ¶¶ 33-35 & Ex. E). Plaintiff recalled being interviewed and examined by a nurse, but opined that it was not a thorough examination, and he disagreed with her conclusion that he was physically able to do mess hall work. (Dep. at 34-42, 48). He told her about his recent surgery and said he could not do strenuous work. (Dep. at 37, 41). Plaintiff told the nurse he was able to participate in programs, but claims that neither he, nor the nurse, specifically discussed mess hall work. (Dep. at 36, 41).
On August 18, 2007, plaintiff submitted a handwritten "Request for Reasonable Accommodation," and was instructed to re-submit his request on the proper form, which plaintiff did on August 24th. (3/4/2009 Memo. Decision and Order of Judge Sharpe, Dkt. No. 16, at 12-13; AC at 10). Plaintiff requested a change in program and facility due to the problems with his right foot and leg. (Id. at 13-14; AC at 10). The request was forwarded to the medical staff for evaluation on or before August 28, 2007.*fn10 On September 11, 2007, Dr. Connally, a facility physician, told Defendant Stearns "that Mr. Cooke's leg was infected, that Cooke was not caring for it properly and that he should be transferred to a wheel chair access facility." (Stearns Aff. ¶¶ 27-29 & Ex. C; AC at 10). On September 12th, defendant Stearns signed the "Determination" section of the form which stated that plaintiff's transfer to a wheelchair-accessible facility was being processed, and noted that the doctor had recommended removal from the mess hall work assignment. (3/4/2009 Memorandum Decision and Order at 14; AC at 10). In the "Inmate Receipt" portion of the form, plaintiff stated that he agreed with defendant Stearns's determination. (Id. at 14-15; AC at 10).
Plaintiff believes that, on or about September 12, 2007, the medical staff at Bare Hill found that the area where his leg had been amputated was infected. (AC at 1; Dep. at 78, 87-88). Plaintiff has acknowledged that, as soon as defendant Stearns became aware of the infection in plaintiff's leg, plaintiff was removed from his mess hall work assignment. (Dep. at 79-80, 85; Stearns Aff. ¶¶ 27-30). Plaintiff also admitted that the woman who assigned him to work in the mess hall (whom the plaintiff believed to be defendant Flanagan), was not trying to harm him or cause him any physical pain. "She simply didn't know. She couldn't know because she didn't read the [medical] chart." (Dep. at 81).
On October 17, 2007, plaintiff was running a temperature of 104 degrees and was transferred to Alice Hyde Medical Center, and then to Albany Medical Center, for evaluation. (AC at 1; Dep. at 82). Apparently, the infected part of the leg was then surgically removed. (AC at 1; Dep. at 85). Plaintiff was returned to Bare Hill where he was required to walk on crutches to obtain follow-up medical care. On October 31, 2010, he fell on a walkway while en route to the infirmary to change the dressing on his leg, suffering further injury. (AC at 4; Dep. at 84-85).
II. Summary Judgment
As noted above, plaintiff's only remaining claim is that defendants Stearns and Flanagan violated his Eighth Amendment rights by assigning him to a mess hall work detail. Defendants seek summary judgment, arguing that they were not personally involved in plaintiff's program assignment, and that plaintiff cannot establish that they acted with deliberate indifference to plaintiff's health and safety. For the reasons stated below, this court agrees with the defendants' position and recommends that summary judgment be granted, and that the remaining claim in the amended complaint be dismissed in its entirety.
A. Legal Standard for Summary Judgment
Summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56; Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). "Only disputes over ["material"] facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994).
The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Salahuddin v. Goord, 467 F.3d at 273. In that context, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Salahuddin v. Goord, 467 F.3d at 272. "[I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to "formal pleadings drafted by lawyers." Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (citing, inter alia, Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994) (a court is to read a pro se party's "supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest")). "However, a pro se party's "bald assertion," completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991)). While a court "'is not required to consider what the parties fail to point out,'" the court may in its discretion opt to conduct "an assiduous review of the record" even where a party fails to respond to the moving party's statement of material facts. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (citations omitted).*fn11
B. Personal Involvement
Personal involvement is a prerequisite to the assessment of damages in a section 1983 case, and respondeat superior is an inappropriate theory of liability for any constitutional claim. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003). In Williams v. Smith, 781 F.2d 319, 323--24 (2d Cir. 1986), the Second Circuit detailed the various ways in which a defendant can be personally involved in a constitutional deprivation, and thus be subject to individual liability.
A supervisory official is personally involved if that official directly participated in the infraction. Id. The defendant may have been personally involved if, after learning of a violation through a report or appeal, he or she failed to remedy the wrong. Id. Personal involvement may also exist if the official created a policy or custom under which unconstitutional practices occurred or allowed such a policy or custom to continue. Id. Finally, a supervisory official may be personally involved if he or she were grossly negligent in managing subordinates who caused the unlawful condition or event. Id. See Iqbal v. Hasty, 490 F.3d 143, 152--53 (2d Cir. 2007), rev'd on other grounds sub nom. Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (stating that defendant could be liable under section 1983 if he failed to remedy constitutional violation after learning of it or was grossly negligent in managing subordinates who caused violation); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
1. Defendant Stearns
Defendant Stearns lacked personal involvement in the Program Committee's decision to assign plaintiff to the mess hall because, as noted above, he was not a member of the committee and had no direct involvement in its meetings and decisions. He cannot be deemed personally involved in the decisions of the Program Committee merely because he supervised it. See, e.g., Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.2003) (doctor who oversaw the facility's medical staff could not be deemed personally involved in the decisions merely because of his supervisory status).
When defendant Stearns first learned, from a staff physician, that plaintiff's work assignment was inappropriate given his medical condition, he promptly directed that plaintiff be removed from his mess hall job. Plaintiff has made no allegation, much less a plausible showing, that defendant Stearns created a relevant custom or policy or was grossly negligent in his supervision of subordinates who made plaintiff's job assignment. In short, defendant Stearns cannot be liable for plaintiff's job assignment because there is indication that he was "personally involved." See, e.g., Wilson v. Johnson, 999 F. Supp. 394, 400 (W.D.N.Y. 1998) (facility superintendent was not personally involved in the work assignment of an inmate when there was no evidence indicating he was advised about any health risk connected to the job assignment, that he was so advised and failed to take corrective action, that he created or carried out a policy exposing inmates to unsafe work assignments, or that he was grossly negligent in supervising subordinates).
2. Defendant Flanagan
As discussed above, the defendants have submitted persuasive documentary evidence to corroborate defendant Flanagan's sworn affidavit that she did not participate in the assignment of plaintiff's work detail because she was not working on the day the Program Committee met with him. Plaintiff's claims that defendant Flanagan presided at the meeting during which he was assigned to work in the mess hall are inconsistent and appear to be based on a mere assumption that she must have been present because she was the chair of the committee. (Dep. at 24, 57-59).*fn12 In light of the overwhelming contrary, documentary evidence, plaintiff's conclusory allegations of defendant Flanagan's personal involvement in his job assignment are not sufficient to create a material issue of fact. See, e.g., Mccloud v. Roy, 9:08-CV-839 , 2010 WL 985731, at *7 (N.D.N.Y. Feb. 22, 2010) (plaintiff's conclusory allegation that he requested a bottom bunk placement from prison doctor is insufficient to create a dispute of fact in the face of the sworn declaration and supporting documentary evidence in the record); Benitez v. Pecenco, 92 Civ. 7670, 1995 WL 444352 at n.5, (S.D.N.Y. July 27, 1995) (plaintiff's conclusory allegation that he was never issued medication was directly contradicted by medical records and was insufficient to create a factual dispute on that issue) (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) ("mere conclusory allegations or denials are insufficient to withstand a motion for summary judgment once the moving party has set forth a documentary case")).*fn13 See also Atkinson v. Fischer, 9:07-CV-368 (GLS/GHL), 2009 WL 3165544 at *11, 2009 (N.D.N.Y. Sept. 25, 2009) (granting summary judgment in favor of defendants who were not in any way involved in inmate plaintiff's job assignment).
In his deposition, plaintiff also makes conclusory and unsupported claims that, on several occasions after his meeting with the Program Committee, he wrote defendant Flanagan "requesting a change of programs due to the fact it's strenuous to me." (Dep. at 91). Given that none of this alleged correspondence has been submitted to the court, the court concludes that plaintiff's conclusory allegations are insufficient to establish defendant Flanagan's personal involvement in failing to change his program placement during the month or so he worked in the mess hall. See, e.g., Wilson v. Johnson, 999 F. Supp. at 400. In any event, as discussed below, there is no indication that, even if defendant Flanagan declined to change plaintiff's placement based on his general complaints, she could be found deliberately indifferent to his health and well-being.
3. Unnamed Potential Defendants
Although defendants Stearns and Flanagan were not personally involved in the initial decision to assign plaintiff to a mess hall work assignment, there were clearly several other unidentified staff members at Bare Hill who were. In Davis v. Kelly, the Second Circuit discussed the circumstances under which a court should not dismiss otherwise colorable section 1983 claims against supervisory personnel who deny personal involvement until a pro se plaintiff has been afforded an opportunity, through at least brief discovery, to identify the subordinate officials who have personal liability. Davis v. Kelly, 160 F.3d 917, 920-21 (2d Cir. 1998). The Davis court held:
. . . [W]hen a pro se plaintiff brings a colorable claim against supervisory personnel, and those supervisory personnel respond with a dispositive motion grounded in the plaintiff's failure to identify the individuals who were personally involved, under circumstances in which the plaintiff would not be expected to have that knowledge, dismissal should not occur without an opportunity for additional discovery.
Davis v. Kelly, 160 F.3d at 922.
In this case, the dismissal of plaintiff's claim should not be delayed, based on Davis, to provide him an opportunity to conduct further discovery to identify those who were personally involved in his job assignment. First, Davis involved the decision to transfer of an inmate from one facility to another. Because of security issues related to prison transfers, the decision-making process is not transparent to inmates; the identity of the decision makers and the reasons for the transfer are often not disclosed. Hence, inmate plaintiffs might understandably have difficulty identifying who was involved in their transfer. See, e.g., Smith v. Greene, 9:06-CV-505, 2010 WL 985383, at *5-8 & n.7 (N.D.N.Y. Feb. 3, 2010). This case involves prison job assignments, for which the process is more transparent. The decision relating to plaintiff's job assignment was made in his presence by a committee of three individuals, who, plaintiff claims, introduced themselves to him. (Dep. at 57). With a level of diligence reasonable for a pro se litigant, the plaintiff could have correctly identified the facility staff members involved in his job assignment if he chose to do so.
Furthermore, for the reasons discussed below, plaintiff's pending claim that his Eighth Amendment rights were violated is not "colorable" because he cannot establish that the actual members of the committee acted with deliberate indifference to his health and welfare. As noted above, the medical staff at the prison had cleared plaintiff for a mess hall job assignment before the committee met, so they had no reason to know that such an assignment might be detrimental to his health.
C. Eighth Amendment Claim
1. Legal Standards
The Eighth Amendment protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials. Wilson v. Seiter, 501 U.S. 294, 297 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976). The constitutional prohibition against cruel and unusual punishment includes the right to be free from conditions of confinement that impose an excessive risk to an inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994). To establish an Eighth Amendment claim based on unsafe or medically inappropriate working conditions, a plaintiff must establish that (1) he was incarcerated under conditions which posed a substantial risk of serious harm, and (2) prison officials acted with deliberate indifference to his health or safety. See Farmer, 511 U.S. at 834. Plaintiff's claim may also be analogized to a claim for inadequate medical care, which similarly requires proof of deliberate indifference. See, e.g., Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987) (prisoner alleged Eighth Amendment medical claim when he alleged that prison guards deliberately ignored doctor's order that prisoner pursue exercise in prison gym); Atkinson v. Fischer, 2009 WL 3165544 at *11 (applying Eighth Amendment standards for medical care in analyzing claim that plaintiff was assigned to a prison job that was inappropriate, given his medical condition).
"The deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994). Under the objective standard, a plaintiff must allege a deprivation "sufficiently serious" to constitute a constitutional violation. Hathaway, 37 F.3d at 66 (quoting Wilson v. Seiter, 501 U.S. at 298). An inmate may satisfy the objective prong by alleging that his prison work duties created a substantial risk of serious injury or harm. Howard v. Headly, 72 F. Supp. 2d 118, 123-124 (E.D.N.Y. 1999) (collecting cases).
The subjective element of the Eighth Amendment analysis focuses on whether the defendant official acted with "a sufficiently culpable state of mind." Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) (citing Wilson v. Seiter, 501 U.S. at 300). "Deliberate indifference" requires more than negligence, but less than conduct undertaken for the very purpose of causing harm. Farmer, 511 U.S. at 835. In order for a prison official to act with deliberate indifference, he must know of and disregard an excessive risk to an inmate's health or safety. Hathaway, 37 F.3d at 66. The official 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 the inference. Id.
2. Application
As discussed above, during the month or so he worked in the mess hall, the plaintiff developed an infection in the area above where his foot had previously been amputated. When he was re-examined by the medical staff, a prison doctor determined that the mess hall assignment was no longer appropriate given plaintiff's medical condition. Plaintiff ultimately required surgery to remove another six inches or so of his leg stump. However, the prison doctor concluded that plaintiff's infection was caused, in part, by plaintiff's failure to properly care for his surgery wound. Furthermore, plaintiff admitted that, even before he returned to prison, he was advised that he would require additional surgery to remove another several inches of his leg stump. (Dep. at 28, 32-33). While it is unnecessary to decide the issue, this court will assume for the purposes of this decision that there was a material issue of fact regarding whether plaintiff's initial work assignment exposed him to a substantial risk of further injury and harm. However, to avoid summary judgment, there must also be a genuine issue of fact regarding whether the defendants were aware of a substantial risk of harm to plaintiff from his work assignment and knowingly disregarded that risk.
Plaintiff has not come forward with any evidence to overcome the defendants' showing that they, and the other prison officials who may have been involved in plaintiff's work assignment, did not act with deliberate indifference to his health and safety. When the members of the Program Committee (which did not include defendant Flanagan) initially assigned plaintiff to work in the mess hall, they relied upon the judgment of the prison medical staff,*fn14 which specifically cleared plaintiff for that job placement.*fn15 See, e.g., Wilson v. Johnson, 999 F. Supp. at 399-400 (finding no issue of fact suggesting deliberate indifference relating to plaintiff's job assignment where there was no significant evidence of medical (back) problems at the time of the initial assignment). Plaintiff admitted that the woman presiding at his Program Committee meeting was not trying "to kill me or cause me any physical pain." "She simply didn't know." (Dep. at 81).
Plaintiff alleges that defendants Flanagan and Stearns ignored his appeals to remove him from his job assignment for health reasons after the initial assignment. Even if plaintiff's unsupported allegations regarding his written requests to defendant Flanagan are credited, he only told her that his work was "strenuous" (Dep. at 91), which hardly put her on notice that he was being exposed to a serious infection involving his amputated leg. See, e.g., Wilson v. Johnson, 999 F. Supp. at 400 (corrections counselor was not involved in any constitutional violation involving inmate's job assignment when his complaints about his mess hall job did not mention the back problems that he now alleges were aggravated by the work). When defendant Stearns learned of plaintiff's infection, he promptly had him removed from the mess hall work detail.*fn16 Plaintiff conceded that Stearns "was pretty decent" in how he addressed his request for accommodations. (Dep. at 95). Even assuming that plaintiff's various claims about the defendants' intentions are true and accurate, he has provided nothing to suggest that they acted with deliberate indifference. Hence, even if the named defendants were personally involved in plaintiff's job assignment, this court would still recommend dismissal of the pending Eighth Amendment claim.
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the defendants' motion for summary judgment (Dkt. No. 24) be GRANTED and the remaining claim in the amended complaint be DISMISSED IN ITS ENTIRETY.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days 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 DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 6(e), 72.
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text: Did Apple Leak Next-Gen Macs? An apparent slip on Apple's online store provides some insight into the specifications of the Power Mac G5. Pay no attention to that Mac behind the curtain: Apple Computer Inc. apparently let slip the veil of secrecy cloaking its next Power Macs Thursday night when specifications describing new "G5" Power Macs briefly appeared on the Mac maker's online store. If accurate, the stats confirm widespread reports that the Cupertino, Calif., Mac maker is on the verge of releasing... To read the full article, go to eWeek.


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Event: John Abraham, Bipasha Basu, Twinkle Khanna, Arbaaz Khana, Sajid Khan, Bobby Deol and many other celebrities were spotted at the special screening of Akshay Kumar's KHATTA MEETHA. South sensation Trisha, who is making her Bollywood debut in the film, was also present at the event.
Guest List: John Abraham, Bipasha Basu, Twinkle Khanna, Trisha, Malaika Arora Khan, Arbaaz Khan, Sajid Khan, Bobby Deol, Sanjay Kapoor, Shirish Kunder, Farah Khan
Bollywood celebss Varun Dhawan, Sonakshi Sinha, Arjun Kapoor were snapped at Ravi Chopra's house.
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Bollywood celebs Ajay Devgn, Arjun Kapoor, Farhan Akhtar, Vishal Dadlani, Shekhar Ravijani, Raj Kundra, Mahesh Bhatt, Sapna Pabbi among others were snapped at the airport.
Bollywood director Farhan Akhtar was snapped at Shankar Mahadevan's studio.


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This time of year it's easy to feel upset considering the gloomy winter weather, but Mike Stevens said in the Photolink Library there's always a ray of sunshine, or two.
A Ray of Sunshine
This is an archived article and the information in the article may be outdated. Please look at the time stamp on the story to see when it was last updated.


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Fighting Apathy: New Members on Condo Association Boards
The goal of every Association is to provide a safe, secure, and financially solvent community for its Owners. The vast majority of Associations succeed in this endeavor. This makes it all the more disappointing when Boards break bad and you end up with horror stories in the news. There are many drivers of what makes Boards break bad, and today we'll touch on one of the greatest remedies: new members on Condo Association Boards. Read the article……………..
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Sci fi/Fantasy image bySasha Eldredge
The Red ball point on the hilt and on the end of the top of the axe, is a gem, a ruby powered by the wizards of the dead. The axe has four blades to it, and has a better grip of the handle. This is made, for a character I am going to soon make and post on elfwood.. so please enjoy. And comment..
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Topic: football
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From local TV to the 'Worldwide Leader'
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ESPN's Suzy Kolber is a pioneer among women in sports media regardless of whether or not she wants to admit it. Kolber is a legitimate NFL mind, respected across the…
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Bloody Disgusting reader Karl Howell introduced me to an online comic strip that spoofs Ridley Scott's Prometheus.
Created in the style of Mad Magazine's legendary artist Mort Drucker, renown comic book artist Mark Harrison ("2000AD," "Durham Red," "Glimmer Rats," "Star Wars," "AVP") shared "PrometheArse," a joke strip that takes on Scott's no-so-well received Alien prequel.
Explains Harrison, on the site where you can read the strip in its entirety:
I assumed MAD would have latched onto Prometheus like the proverbial facehugger given it's obvious potential for parody, but was surprised to see it had passed them by. With the encouragement of friends, born out of cathartic need and our seemingly endless debate on the film, I decided to do my own version of a MAD magazine strip. I wanted it to look authentic, not just in the writing (keeping the American references, humor) and copying the strip format and art style of Mort Drucker (one of my art heroes) but also the paper texture and the worn fade look of the inks. I worked entirely in PhotoShop, customising brushes and actions to create a traditional pen and ink wash look. After many weekends of work, what started out as a joking promise ended up as what you see here. Hopefully it strikes the right MAD magazine tone of being mildly amusing and irreverent but not cruel and abusive.
Aside from my obvious affection for MAD and the art of Mort Drucker, I do (believe it or not) have an amount of respect for those involved in the making of the film. At the risk of undermining the humor, Ridley Scott is one of my favorite directors (principally for two of my favorite films; Alien and Blade Runner). I think the cast are very good actors, (especially Charlize Theron!) The concept art and design of the film is excellent. The directing is mercifully free of camera shake, edit-fu and lens flares. The story is… the story is…. errr …see parody!
Click the above link for the entire strip. Harrison also created concept art for the "Aliens vs Predator" game for SEGA.
Image Source: Mark Harrison


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|Key Info
48 BAYTREE COTTAGE - 4 STAR GOLD AWARD (Visit England)
Situated in gardens and woodland, which were once part of Rosecraddoc Manor, Baytree Cottage, is a luxury 2-bedroom, detached self-catering cottage, enjoying a peaceful location, with individual parking, and level wheel chair friendly access to the front and rear.
The cottage offers non-smoking accommodation sleeping up to 4 with 1 double and 1 twin bedroom. A fully tiled wet-room, spacious open plan lounge, fully fitted kitchen, and dining area leading onto a large enclosed sun terrace complete the cottage.
Rosecraddoc is a level site nestling in the beautiful Cornish countryside, just 2 miles from the ancient market town of Liskeard. It is a superb base for exploring Cornwall and there are many places of interest nearby. For the evenings there is the Village Inn, serving great food & drink, within easy reach of the cottage.
|Sleeps up to 4, 2 bedrooms
|2 bedrooms, 1 bathrooms of which 1 family bathroom
|Check in time:
|Check out time:
|Nearest beach
|Looe 19 km
|Car essential
|Nearest Amenities
|6 km
|Nearest travel links
|Nearest airport: Newquay Airport, St Mawgan, TR8 4RQ. 52 km, Nearest railway: Station Road, Liskeard, PL14 4DX. 6 km
|Family friendly
|Suitable for children over 5
|Some pets are welcome - please contact the owner, No smoking at this property
|Internet access
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|Kettle, Toaster, Hair dryer
|Dishwasher, Cooker, Microwave, Fridge, Freezer
|Double Beds (1), Single Beds (2), Dining seats for 4, Lounge seats for 4
|Linen provided, Towels provided
|Balcony or terrace, Shared garden, BBQ
|Parking, Wheelchair users
Cornwall is a beautiful part of the British Isles. There is plenty to do for all ages. The rugged coastline, amazing sandy beaches, rolling countryside, and moorland wilderness are worth a visit.
There are so many attractions which include historical homes, incredible gardens, fishing villages and premier golfing facilities.
The historic market town of Liskeard is located in South East Cornwall, and is home to a number of shops, pubs and restaurants. The beaches and harbour of the quaint fishing ports of Looe & Polperro are a short drive away. Head to the world famous Eden Project for a superb day out. Fishing and watersports can be found at nearby Siblyback Lake, or if you enjoy Golfing, what better place for a round or two at the local championship golf course, St Mellion Country Club.


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June 30, 1987
510 N.E.2d 1183, 157 Ill. App. 3d 934, 110 Ill. Dec. 152 1987.IL.938
Appeal from the Circuit Court of Cook County; the Hon. Richard L. Samuels, Judge, presiding.
APPELLATE Judges:
PRESIDING JUSTICE McMORROW delivered the opinion of the court. JOHNSON and JIGANTI, JJ., concur.
Following a jury trial, defendant Ramon Cantu was convicted of attempted murder (Ill. Rev. Stat. 1979, ch. 38, par. 8-4) and sentenced to 20 years' incarceration. Upon review, we conclude that the jury was erroneously instructed that it could find defendant guilty of attempted murder if the State's evidence proved beyond a reasonable doubt that defendant acted with knowledge that his acts would cause death or would create a strong probability of death or great bodily harm. As a result, we reverse defendant's conviction and remand for a new trial.
Evidence produced at trial established that on October 7, 1979, at approximately 9 p.m., Illinois State Trooper Donald Lange observed and pursued a Thunderbird automobile speeding southward down the Calumet Expressway. After being chased by Lange for about a mile and a half at high speed, the Thunderbird stopped on the right-hand side of the road. Lange stopped beyond the Thunderbird in the left-hand lane of traffic. A few seconds later, Lange heard a loud noise, looked at the Thunderbird, and saw a gun. He then saw a flash come out of the gun and the left, passenger-side window of his car shatter. The Thunderbird made a U-turn, passing nearby Lange, and proceeded north. Lange saw the driver of the automobile; it was the defendant. Illumination was provided by the Mars lights of Lange's car, and the headlights of oncoming traffic.
The Thunderbird travelled north and then pulled onto the side of the road. Lange and other State troopers arrived and surrounded the vehicle, but the driver had fled. Upon inspection, it was discovered that three bullets had been fired into Lange's car, two into the Mars lights, and one through the side window.
Lange searched the Thunderbird. He found shells from a 30/30 caliber rifle and some papers belonging to the defendant. A few weeks after the incident, Lange identified the defendant in a lineup as the individual who had fired the shots at his squad car.
Of the numerous fingerprints found in the Thunderbird, half were identified as those of the defendant. A search of the wooded area near the location where the Thunderbird was abandoned led to the discovery of a 30/30 rifle. The spent cartridge shells recovered from the Thunderbird had been fired from the rifle. Defendant purchased the weapon in 1975.
Defendant's defense was alibi. He testified at trial, as did members of his family and others, that he had been bowling with family that day and was at home that evening when the incident occurred.
Defendant also testified that the Thunderbird belonged to his brother, Steven, and that defendant had been driving the car for several months. On the day in question, defendant drove the car to the bowling alley. Steven came to the bowling alley, talked to the defendant, and then left the premises. When defendant later left the bowling alley and found the car gone, he assumed that Steven, who also had keys to the car, had taken the automobile. When the defendant arrived home, he telephoned Steven, discovered that Steven had not taken the Thunderbird, and told Steven to report the car stolen.
The next day, Steven went to the police station to fill out a report that the vehicle had been stolen. While there, he told the police that his brother, the defendant, had admitted to Steven that the defendant had shot at a State trooper the night before while on the Calumet Expressway. Steven told the police that the defendant's admission had occurred during the course of their telephone conversation the night before. Steven gave a written statement to the police, in which he related defendant's admission of the shooting.
At trial, Steven denied that he had told the police that the defendant had admitted to Steven that the defendant had shot at a State trooper. He also testified that he did not read the written statement allegedly given to the police before he signed it, because he cannot read but can only sign his name. The State impeached these denials with Steven's written prior inconsistent statement.
The jury found the defendant guilty of attempted murder. Following a sentencing hearing, the trial court sentenced defendant to 20 years' imprisonment. Defendant now appeals.
Defendant contends that error occurred when the jury was instructed that it could find him guilty of attempted murder if the State's evidence proved beyond a reasonable doubt that the defendant acted with knowledge that his acts would cause death or would create a strong probability of death or great bodily harm. We hold that the instructions were defective and mandate reversal of defendant's conviction and remand for a new trial.
The record shows that three instructions affecting the charge of attempted murder were given to the jury. First, the definitional attempted murder instruction:
"A person commits the crime of attempt, who with intent to commit the crime of murder does any act which constitutes a substantial step toward the commission of the offense of murder.
The offense attempted need not have been committed."
Second, the definitional murder instruction:
"A person commits the crime of murder who kills an individual if, in performing the acts which caused the death,
he intends to kill that individual; or
he knows that such acts will cause death to that individual; or
he knows that such acts create a strong probability of death to that individual."
Third, the attempted murder issues instruction:
"To sustain the charge of attempt, the State must prove the following propositions:
First : That the Defendant performed an act which constituted a substantial step toward the commission of the crime of murder; and
Second : That the Defendant did so with the intent to commit the crime of murder.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the Defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the Defendant not guilty."
In People v. Gentry (1987), 157 Ill. App. 3d 899, the trial court gave jury instructions substantially similar to those at issue here. In finding that the instructions were erroneous, this court stated:
"Our supreme court has repeatedly held that a finding of specific intent to kill is a necessary element of the crime of attempted murder. (People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343; People v. Harris (1978), 68 Ill. 2d 198, 369 N.E.2d 888.) Indeed, a trial court instructing a jury on the crime of attempted murder must make it clear that specific intent to kill is the pivotal element of that offense, and that intent to do bodily harm, or knowledge that the consequences of defendant's act may result in death or great bodily harm, is not enough. (People v. Jones (1979), 81 Ill. 2d 1, 8-9, 405 N.E.2d 343, 346. Accord, People v. Mitchell (1984), 105 Ill. 2d 1, 473 N.E.2d 1270; People v. Barker (1980), 83 Ill. 2d 319, 415 N.E.2d 404; People v. Coleman (1985), 131 Ill. App. 3d 76, 475 N.E.2d 565.) Recently, in People v. Kraft (1985), 133 Ill. App. 3d 294, 478 N.E.2d 1154, this court found an identical instruction to be erroneous based on the legal principle cited above. Accordingly, the instructions given in this case were erroneous, since it is clear that the jury was permitted to convict [defendant] without specifically finding that [he] intended to kill [the victim]. Few errors are more highly prejudicial than the trial court's failure to give the proper instruction on the intent element of a crime. People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861." 157 Ill. App. 3d at 899.
Based upon this reasoning, we determine that the instructions given here are as infirm as those at issue in Gentry and require reversal of defendant's conviction and remand for a new trial.
The State maintains that the instructions, even if erroneous, did not result in reversible error. It urges that because defendant's defense was alibi, his mental state was not in issue at trial. We find the State's reasoning without merit. In the instant cause, the evidence "either [is] unclear as to the formation of intent or [demonstrates] a lack of intent"; the defendant's intent to commit murder here is not "blatantly evident from the circumstances." People v. Jones (1980), 81 Ill. 2d 1, 10, 405 N.E.2d 343, 347; see also People v. Gentry (1987), 157 Ill. App. 3d 899.
For example, in Jones, the Illinois Supreme Court found that error in the jury instructions regarding attempted murder was harmless, because the evidence demonstrated that "[the] victim was shot four times in the head, peppered with buckshot in his back, and had a shotgun pointed at him by the defendant." (People v. Jones (1980), 81 Ill. 2d 1, 10, 405 N.E.2d 343, 347.) Here, in comparison, the apparent intended victim, Trooper Lange, was not injured by gunshot or any other form of attack. We also observe that when the driver of the Thunderbird made a U-turn in sufficient proximity for Lange to be able to positively identify him, the driver did not attempt to fire or point a gun at Lange. On these facts, we cannot find the State's proof of defendant's intent to kill so blatant that error in the jury instructions regarding attempted murder could be deemed harmless.
Defendant also contends that the State failed to prove him guilty of attempted murder beyond a reasonable doubt. We have closely reviewed the record and determine that proof of defendant's guilt of attempted murder was not so improbable or unsatisfactory that the jury's verdict should be disturbed on this basis. See, e.g., People v. Byron (1987), 116 Ill. 2d 81, 89-90, 506 N.E.2d 1247.
In closing, we note that we have appellate jurisdiction to consider the merits of defendant's appeal. See, e.g., People v. Mims (1980), 82 Ill. 2d 63, 65-66, 411 N.E.2d 215; People v. Jacobs (1975), 61 Ill. 2d 590, 592, 338 N.E.2d 161; People v. Brown (1973), 54 Ill. 2d 25, 26, 294 N.E.2d 267.
In view of these Dispositions, we need not consider the remaining questions raised herein.
For the reasons stated, the judgment of the circuit court is reversed and the cause remanded for a new trial.
Reversed and remanded.
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decided: May 6, 1981.
CRUCIBLE STEEL CORPORATION, PETITIONERv.COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ROY B. BAILEY, RESPONDENTS
Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Roy B. Bailey v. Crucible Incorporated, No. A-77219.
Roy F. Walters, Jr., Fried, Kane, Walters & Zuschlag, for petitioner.
Benjamin L. Costello, with him Kenneth J. Yablonski, Yablonski, King, Costello & Leckie, for respondent, Roy B. Bailey.
Judges Rogers, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Rogers.
[ 59 Pa. Commw. Page 185]
Crucible Steel Corporation (Crucible) has appealed from an order of the Workmen's Compensation Appeal Board affirming a referee's decision awarding Roy Bailey workmen's compensation benefits for total disability due to a work-related occupational disease pursuant to Section 301(c)(2) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(2). We affirm.
Bailey was employed for thirty-five years by Crucible or its predecessors. During this time Bailey
[ 59 Pa. Commw. Page 186]
worked as a pickle line helper, a slabyard crane man, a blooming mill crane man, a stripper crane man and a soaking pit crane man and, throughout his employment, Bailey was exposed to dust from flint and silica and fumes from acid. Bailey ceased work on March 14, 1977, due to a severe shortness of breath. He thereafter filed a petition for workmen's compensation benefits for total, or in the alternative partial, disability due to an occupational disease as defined in Section 108(n) of the Act, 77 P.S. § 27.1(n).*fn1 Upon Crucible's denial of all the material allegations contained in Bailey's petition, several referee's hearings were held. The evidence adduced at these hearings consisted of the testimony of Bailey and the depositions and medical reports of Dr. J. D. Silverman, Bailey's examining physician, and Dr. Claus L. Anderson, who examined Bailey at Crucible's request. The following findings of fact of the referee provide a comprehensive summary of the two doctors' testimony, as well as the referee's consideration of this testimony:
10. On February 22, 1978 the claimant was examined by Dr. J. D. Silverman, specialist in pulmonary diseases and the claimant's examining physician. X-rays of the claimant's
[ 59 Pa. Commw. Page 187]
chest were interpreted as revealing pneumoconiosis; category 1/1, type P and S, both lungs (six zones). Pulmonary function studies revealed both restrictive of obstructive disease. The doctor, based on the history, his clinical examination, the x-rays and pulmonary function study results, made diagnosis of mixed dust pneumoconiosis and silicosis with pulmonary emphysema and chronic asthmatic bronchitis as complications of the aforementioned primary diseases.
11. It was further the opinion of Dr. Silverman that the claimant was totally and permanently disabled as a result of the aforementioned occupational diseases which had occurred as a result of his total and cumulative exposure to dust both while working in the flint and steel mills. That the claimant's occupational diseases were all causally related to his employment and that the incidence was substantially greater in his occupations than in the general population.
12. It was finally the opinion of Dr. Silverman that although the claimant's smoking habit*fn2 may have aggravated the occupational diseases, that in the absence of his smoking habit and his musculoskeletal problems, the occupational diseases in and of themselves would render him totally and permanently disabled.
13. On August 16, 1978 the claimant was examined by Dr. Claus L. Anderson, specialist in pulmonary diseases and the defendant's examining
[ 59 Pa. Commw. Page 188]
physician. X-rays of the chest revealed a few small calcific nodules in the right lower lung field, elsewhere the lung fields were clear. The doctor found no evidence of pneumoconiosis and classified the x-ray as 0/0. Pulmonary function studies revealed evidence of a mild restrictive and obstructive defect. The doctor based on the history, clinical examination, x-ray and pulmonary function study results, made diagnosis of chronic bronchitis and chronic obstructive lung disease which resulted from his extensive cigarette smoking habit and which impaired him from a respiratory standpoint at a percentage of 35% to 40%. It was the doctor's opinion that he could return to his former occupation as a crane operator.
14. It was further Dr. Anderson's opinion that there was no increased incidence of chronic bronchitis or pneumoconiosis in the claimant's occupation. Nor did said occupation constitute an occupational disease hazard.
15. In resolving the conflicting medical testimony and opinions your Referee finds the testimony and opinion of Dr. Silverman to be both competent and credible and will rely on it, in part, in arriving at a final determination in this case.
16. On February 22, 1978 the claimant became totally and permanently disabled due to mixed dust pneumoconiosis and silicosis with complications of pulmonary emphysema and chronic asthmatic bronchitis resulting from said diseases which resulted from his total and cumulative exposure to dusts during all of his employment in the industries in which he was employed.
[ 59 Pa. Commw. Page 18917]
. Your Referee further finds that the claimant was exposed to the hazard of the aforementioned diseases by reason of his employment, that said diseases were causally related to the industries in which he was employed and that the incident of said diseases were substantially greater in said industries than in the general population.
The referee concluded that Bailey had sustained his burden of proving that he suffered an injury due to an occupational disease within the meaning of Sections 108(n) and 301(c)(2) of the Act. Accordingly, the referee awarded Bailey benefits for total disability. The Board, without taking additional evidence affirmed the referee's decision.
Crucible does not contest the referee's finding that Bailey's "mixed dust pneumoconiosis and silicosis with complications of pulmonary emphysema and chronic asthmatic bronchitis" is an occupational disease as defined by Section 108(n) of the Act, 77 P.S. § 27.1(n). Rather, Crucible contends that there is not substantial evidence in the record to support the referee's finding that Bailey's disability resulted from this occupational disease. We disagree.
A claimant seeking benefits for an injury occasioned by an occupational disease has the burden of proving that his or her disability resulted from the occupational disease. Section 301(c)(2) of the Act, 77 P.S. § 411(2). The unequivocal testimony of Dr. Silverman supports the referee's findings that Bailey suffered an occupational disease and that his disability resulted directly from the occupational disease. Moreover, Dr. Silverman, while acknowledging that Bailey's condition may have been aggravated by his smoking and some back problems, testified that even if Bailey did not have these other problems, the occupational disease suffered by Bailey would in and
[ 59 Pa. Commw. Page 190]
of itself have resulted in his total and permanent disability. Thus, Bailey did sustain his burden of proof.
In essence, Crucible is complaining that the referee should have accepted the testimony of its expert, Dr. Anderson, rather than the testimony of Dr. Silverman. However, it is the function of the referee, as factfinder, to choose between the conflicting medical evidence. See, e.g. City of Scranton Fire Department v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 151, 154, 401 A.2d 889, 892 (1979).
Order affirmed; an appropriate judgment order will be entered.
And Now, this 6th day of May, 1981, the order of the Workmen's Compensation Appeal Board, dated January 10, 1980, is affirmed and it is ordered that judgment be entered in favor of the claimant, Roy Bailey, and against the petitioner, Crucible Steel Corporation, self-insured, in the amount of $199.00 per week commencing on May 17, 1978, and continuing into the future in accordance with the provisions of The Pennsylvania Workmen's Compensation Act. All deferred compensation payments shall bear interest at the rate of ten percent per annum.
The petitioner is ordered to reimburse counsel for the claimant, Kenneth J. Yablonski, Esquire, for reasonable costs in the amount of $336.00. Counsel of the claimant is hereby awarded reasonable attorney fees in the amount of $4,746.15 and the petitioner is directed to deduct $29.85 from each week of compensation that becomes due and payable to the claimant beginning May 17, 1978, and continuing for 159 weeks and to pay this amount directly to counsel for the claimant. All remaining payments of compensation and interest, and all payments due and payable after the expiration of 159 weeks from May 17, 1978, shall
[ 59 Pa. Commw. Page 191]
be paid by the petitioner directly to the claimant by bank draft in the name of the claimant only and mailed directly to the claimant by first class mail.
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Visual Shock: A History of Art Controversies in American Culture.
KAMMEN, Michael.
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Description: B/w illustrations. 450pp., tall 8vo, cloth-backed boards, dust wrapper. New York: Alfred A. Knopf, 2006. Near fine.Binding: hardcover
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By This Author: KAMMEN, Michael.