Tam v. LaFrance et al

Filing 36

RULING granting 33 Motion for Summary Judgment. Signed by Judge Dominic J. Squatrito on 2/19/14. (Glynn, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

VU TAM,
Plaintiff,
v.
BARBER LaFRANCE, et al.,
Defendants.

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Case No. 3:12-cv-1019(DJS)

RULING ON MOTION FOR SUMMARY JUDGMENT [Doc. #33]
The plaintiff, Tam Vu,1 is confined at the MacDougall-Walker
Correctional Center.

He brings this civil rights action for

deliberate indifference to serious medical needs against
Utilization Review Committee members Drs. Ruiz, Naqvi,2 Farinella
and Wu (“the defendants”).

Claims against Medical Supervisor

LaFrance were dismissed on August 20, 2012.
filed a motion for summary judgment.

The defendants have

For the reasons that

follow, the motion for summary judgment is granted.

1

Department of Correction records indicate that the
plaintiff’s name is Tam Vu. During his deposition, the plaintiff
confirmed that his first name is Tam and his last name is Vu.
See Doc. #33-2 at 15. In the case caption of the original
complaint, the plaintiff indicated his name as Vu, Tam and signed
the complaint Tam Vu. The Clerk, however, entered the name as Vu
Tam. On the amended complaint the plaintiff omitted the comma in
the case caption, listing his name as Vu Tam, but again signed
his name as Tam Vu. In this ruling, the court uses the
plaintiff’s correct name, Tam Vu.
2

The plaintiff incorrectly identified this defendant as Dr.
Haqui in the amended complaint.

I.

Standard of Review
A motion for summary judgment may be granted only where

there are no issues of material fact genuinely in dispute and the
moving party is entitled to judgment as a matter of law.

See

Rule 56(a), Fed. R. Civ. P.; In re Dana Corp., 574 F.3d 129, 151
(2d Cir. 2009).

The moving party may satisfy his burden “by

showing - - that is pointing out to the district court - - that
there is an absence of evidence to support the nonmoving party’s
case.”

PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d

Cir. 2002) (per curiam) (internal quotation marks and citations
omitted).

Once the moving party meets this burden, the nonmoving

party must set forth specific facts showing that there is a
genuine issue for trial.
Cir. 2009).

Wright v. Goord, 554 F.3d 255, 266 (2d

He must present such evidence as would allow a jury

to find in his favor in order to defeat the motion for summary
judgment.
2000).

Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.

Merely verifying conclusory allegations of the complaint

in an affidavit, however, is insufficient to oppose a motion for
summary judgment.

Zigmund v. Foster, 106 F. Supp. 2d 352, 356

(D. Conn. 2000).
When reviewing the record, the court resolves all
ambiguities and draws all permissible factual inferences in favor
of the party against whom summary judgment is sought.

Loeffler

v. Staten Island Univ. Hosp., 582 F.3d 268, 274 (2d Cir. 2009).

2

If there is any evidence in the record on a material issue from
which a reasonable inference could be drawn in favor of the
nonmoving party, summary judgment is inappropriate.

Security

Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d
77, 83 (2d Cir. 2004).

However, the existence of a mere

“scintilla” of evidence supporting the plaintiff’s position is
insufficient to defeat a motion for summary judgment.

Harvey v.

Homebound Mortgage, Inc., 547 F.3d 158, 163 (2d Cir. 2008).
II.

Facts
The facts are taken from the defendants’ Local Rule 56(a)1

Statement and the exhibits attached to the complaint and motion
for summary judgment.

Local Rule 56(a)2 requires the party

opposing summary judgment to submit a Local Rule 56(a)2 Statement
which contains separately numbered paragraphs corresponding to
the Local Rule 56(a)1 Statement and indicates whether the
opposing party admits or denies the facts set forth by the moving
party.

Each denial must include a citation to an affidavit or

other admissible evidence.

In addition, the opposing party must

submit a list of disputed factual issues.

See D. Conn. L. Civ.

R. 56(a)2 & 56(a)3.
Despite receiving notice of his obligation to respond to the
motion for summary judgment and the contents of a proper
response, the plaintiff did not submit a Local Rule 56(a)2
Statement.

There is a section of the plaintiff's memorandum

3

entitled "Disputed Issues of Material Fact." The plaintiff
includes citations to "Id" in that section, but he does not
identify the document to which he refers. That section also cites
to certain exhibits that are attached to his memorandum, but
those exhibits do not include an affidavit or other admissible
evidence that would support his contention of disputed issues of
material fact. In the absence of a citation to admissible
evidence documenting a dispute over a fact, the defendants’
properly supported facts are deemed admitted.

See D. Conn. L.

Civ. R. 56(a)1 (“All material facts set forth in said statement
and supported by the evidence will be deemed admitted unless
controverted by the statement required to be filed and served by
the opposing party in accordance with Local Rule 56(a)2.”).
Before coming to Connecticut, the plaintiff was incarcerated
in New York where he underwent surgery in August 2008 to remove a
non-malignant brain tumor.

Following the surgery, the plaintiff

complained about difficulty swallowing and eating and experienced
progressively worsening double vision.
plaintiff underwent throat surgery.

In November 2008 the

He received no further

surgery on his eyes or throat while incarcerated in New York and
filed no complaints about his medical care there.
The plaintiff was transferred to Connecticut in January
2010.

The plaintiff is not scheduled to be released from custody

until August 2026.

4

In the Connecticut Department of Correction, health care
within the correctional facilities is provided by doctors and
nurses employed by the University of Connecticut Health Center.
The plaintiff is confined at MacDougall-Walker Correctional
Institution (“MacDougall”), the facility with the Department of
Correction's most advanced infirmary.

When an inmate might

require care that cannot be provided in the correctional
facility, doctors submit a request to the Utilization Review
Committee (“URC”), a panel of doctors who review requests statewide to ensure consistency of care and evaluate the medical
necessity of the requested treatment.
During the time pertinent to this action, Drs. Naqvi,
Farinella, Ruiz and Buchanan served on the URC.
assisted Dr. Buchanan.
this time.

Dr. Maurer

Dr. Wu was not a member of the URC during

Dr. Naqvi also served as the plaintiff’s treating

physician at the correctional facility, however, he is named in
this action only as a member of the URC.
Upon his arrival in Connecticut on January 12, 2010, the
plaintiff told the intake nurse that he suffered from arthritis,
a history of back pain and a history of smoking and drug abuse.
He made no reference to complaints regarding his eyesight,
swallowing, breathing or hearing.

He did not indicate that he

needed to see a doctor.
On January 19, 2010, the plaintiff was seen by medical staff

5

at the Bridgeport Correctional Center for a regular visit.

He

told medical staff that he had headaches and had undergone
surgery.

He was provided pain medication and signed a release to

enable medical staff to obtain his New York medical records.
days later the plaintiff was again seen by medical staff.

Two

At

that time he explained what he understood of his health history
and it was noted that he had vision problems with his left eye.
The plaintiff sought, and was given, a bottom bunk pass.
Two weeks after his admission, the plaintiff was transferred
from the Bridgeport Correctional Center to MacDougall.

He signed

another release and staff requested his New York records.

At

that time a notation was entered on his record indicating that a
doctor’s appointment should be scheduled for him when his New
York records arrived.

The plaintiff saw a doctor on January 28,

2010, before his medical records arrived.

He was unable to tell

the doctor what type of brain tumor had been removed in New York
and was unable to indicate the results of an MRI that had been
performed. He stated only that the New York doctors had said
something was wrong.
At the end of January and again on February 11, 2010, the
plaintiff asked to see a doctor because he had pain in his brain,
neck and head.

The plaintiff was seen by health staff on

February 14, 2010.
surgery.

The plaintiff attributed his pain to his

Medical notes indicate that the plaintiff’s medical

6

records had not yet arrived from New York.

He was given Motrin

for the pain and his vital signs were checked.
In March 2010 the plaintiff asked to see a doctor because of
pain in his left ear and head.

A nurse examined the plaintiff on

March 28, 2010, for left ear pain which the plaintiff attributed
to his surgery in 2008.

The nurse noted that an appointment with

a doctor was scheduled for April.

None of the defendants were

responsible for scheduling initial or routine doctor visits
within a correctional facility.
Dr. Naqvi first saw the plaintiff on April 5, 2010.

The

plaintiff complained of experiencing intermittent headaches and
an itch in his left eye.

Dr. Naqvi treated those complaints by

prescribing Motrin and an antihistamine.

He also instructed the

nurse to follow up on the request for the plaintiff’s New York
medical records.
antihistamine.

The plaintiff refused to take the
Later in April the plaintiff was seen for cold

symptoms.
In May 2010, the plaintiff was seen for acne.

At that time

the nurse obtained another request for medical records and
referred the plaintiff to the doctor, noting that his ear was
slightly red and irritated.

The plaintiff reported ear pain on

June 21, 2010, and Dr. Naqvi saw him two days later.

The

plaintiff’s 2008 surgery had caused hearing loss in his left ear.
The plaintiff complained of left ear and neck pain.

7

Dr. Naqvi

prescribed Elavil for the pain and told the plaintiff that he
needed the plaintiff’s New York medical records before he could
make any further appointments. Dr. Naqvi indicated that the New
York records were necessary because it was difficult to treat the
plaintiff without more specific information and because the
plaintiff was a poor historian.
On June 28, 2010, the plaintiff was seen by a nurse on an
emergency sick call.

The plaintiff complained that he had been

dizzy for several days, vision in his right eye was blurry and he
felt nauseous.

He told the nurse that doctors in New York had

told him he had a second tumor on the right side of his head and
that he feared the tumor might have grown.
on physical examination.

Nothing was apparent

The nurse gave the plaintiff Milk of

Magnesia and followed up again regarding the New York medical
records.
On June 29, 2010, the plaintiff sent a letter requesting to
see a doctor, stating that he felt the same way he had in 2008
before the tumor was discovered.

The plaintiff also stated that

he was experiencing head pain. Nursing staff did not act on this
request.

Members of the URC did not receive a copy of this

letter, nor was Dr. Naqvi aware of it at the facility.
On August 15, 2010, a nurse noted on the plaintiff's chart
that she was making an appointment with a doctor and that the New
York medical records still had not arrived.

8

On August 22, 2010,

the plaintiff asked to be seen by a nurse for left ear pain and
itchy eyes.

Dr. Naqvi saw the plaintiff the following day.

Dr.

Naqvi noted that the New York medical records still had not been
received.
eyes.

The plaintiff only complained of an earache and itchy

Dr. Naqvi prescribed Cipro, an antibiotic, and Benadryl

for itchiness.
On September 6, 2010, the plaintiff met with a nurse
regarding ear pain.

He reported that he had taken the antibiotic

and that Motrin did not relieve the pain.

The nurse noted no

irritation, wax build up or sign of infection in the plaintiff’s
ear, but indicated that she would refer the plaintiff to the
prescriber, Dr. Naqvi. On September 11, 2010, the plaintiff had
swelling in his ear and was again seen by a nurse. On that
occasion he acknowledged that he had put rolled up toilet paper
in his ear to clean it.

On September 13, 2010, Dr. Naqvi saw the

plaintiff for ear pain.

Dr. Naqvi noted an extreme ear infection

and prescribed Cortisporin, a combination steroid and antibiotic.
The New York medical records arrived in November 2010.
records revealed the following information.

The

In December 2008,

four months after the brain surgery, the doctor noted that the
plaintiff had hearing loss in his left ear, a deviation in his
palate and mild left tongue atrophy.

The plaintiff complained of

diplopia [double vision] when he looked to the left.
plaintiff had no other complaints.

9

The

He denied headaches, nausea,

vomiting, weakness, numbness, difficulty breathing, speaking or
swallowing.

The doctor noted that the plaintiff’s speech was

mildly affected by his neurological issues but there were no
issues of immediate concern.

The only follow-up noted was an MRI

the plaintiff was to have in August 2009.
A week after the medical records arrived, the plaintiff
reported to sick call complaining of pain in his head.

To Dr.

Naqvi’s knowledge, this was the first complaint of head pain or
headaches since April 2010.

The plaintiff did not complain of

difficulty breathing or double vision.

The nurse explained to

the plaintiff the process of obtaining an out-of-facility consult
and stated that she would refer the New York medical records to a
doctor for review.
Two days later, on November 18, 2010, Dr. Naqvi submitted a
URC request for an MRI of the plaintiff’s brain.

The request

noted the plaintiff’s recurrent headaches and ear infections, his
history of brain surgery and his questions whether his current
symptoms were related to the past disease.
the condition was listed as unknown.

The onset date for

The plaintiff's medical

records were submitted with the request.

The request was not

labeled a rush as the plaintiff did not have any urgent issues
and the New York records recommended the MRI as a follow-up to
the surgery.

The URC approved the procedure and scheduled the

MRI for January 10, 2011.

The MRI was rescheduled due to snow

10

and completed on February 9, 2011.
In December 2010, while this request was pending, the
plaintiff was involved in an altercation resulting in contusions
about the face and head, inability to fully open his mouth and a
bloody nose.

A second URC request was submitted, this time for

an emergency room consult.
retroactively.

The request was approved

Dr. Farinella had ordered the plaintiff

transported to the University of Connecticut Medical Center for
emergency treatment after the altercation.

At this time the

plaintiff complained of an inability to swallow. This was the
first time he had made such a complaint since his transfer to
Connecticut in January 2010.
Two days after the altercation the plaintiff complained of
pain in his eyes.

He was prescribed pain medication and

antibiotics for a nasal fracture.

The following day, an

ophthalmology consult was requested as a follow-up to the
emergency room visit.

The URC request specified the date of the

altercation as the date of the incident or onset of the issue.
The request sought an ophthalmology consult if the plaintiff’s
vision changed within the next week.

The URC approved the

request.
Dr. Naqvi saw the plaintiff on January 11, 2011.

He

prescribed Motrin because the plaintiff’s chest remained tender
after the assault and noted that the plaintiff had been scheduled

11

for an optometry appointment.
The plaintiff’s MRI was performed on February 9, 2011.

On

February 13, 2011, the plaintiff reported to sick call and asked
for the MRI results to be explained to him.

For the first time,

the plaintiff stated that he believed he was supposed to get a
hearing aid.

Also for the first time since his transfer to

Connecticut, the plaintiff complained of double vision.
Dr. Naqvi saw the plaintiff on February 14, 2011.

The

plaintiff stated that he experienced dizziness, hearing loss and
double vision since his brain surgery.

The plaintiff had not

previously complained to Dr. Naqvi about double vision.

Dr.

Naqvi noted that it was difficult to compare the new MRI to the
previous one, even though both were taken after the brain
surgery, because the previous MRI did not have all of the
dimensions of the area of the brain in question.

The new MRI did

not indicate to Dr. Naqvi any urgent need for neurological care.
Dr. Naqvi noted that the plaintiff needed a hearing test and an
ophthalmology consult.
The following day, the plaintiff was seen by an optometrist
and prescribed glasses with prisms to help correct his double
vision.

The plaintiff told the optometrist that he had been

scheduled for surgery in New York to correct the double vision.
No scheduled surgery is evident from any of the New York medical
records sent to Connecticut. On June 28, 2011, the plaintiff met

12

with an optometrist who at that time determined that the glasses
ordered in February 2011 had been made incorrectly by the lab.
Neither the URC nor Dr. Naqvi were informed of the error.
On April 7, 2011, the plaintiff requested examination by an
ear, nose and throat (“ENT”) doctor, stating that he had serious
problems with his throat.
18, 2011.

Dr. Naqvi saw the plaintiff on April

The plaintiff told Dr. Naqvi that he had issues with

eating and wanted something done to improve his voice and
breathing.

Dr. Naqvi noted three complaints on this visit:

nasal discharge when eating, double vision and issues with the
plaintiff’s voice.

Dr. Naqvi reassured the plaintiff regarding

the nasal discharge and noted that the plaintiff’s double vision
was being treated by the optometrist with glasses.

Dr. Naqvi

also noted that the plaintiff’s breathing was fine and his voice
intelligible, but a little breathy.

He questioned whether the

plaintiff experienced vocal cord weakness as a result of his
previous throat surgery.

This was the first time the plaintiff

complained to Dr. Naqvi about issues involving eating, breathing
or his throat.
On June 4, 2011, the plaintiff again requested an ENT visit
for medical treatment for his throat.

When he was seen four days

later, the plaintiff stated that from the time of his sentencing
he was supposed to have surgery to open his airway.

Nothing in

the New York medical records indicated that the plaintiff had

13

been scheduled for any surgery that had not been performed.
The ophthalmology consult approved by the URC was completed
on June 21, 2011.

The ophthalmologist submitted a request that

the plaintiff see a pediatric strabismologist, a children’s
doctor specializing in crossed eyes and other focus disorders.
The ophthalmologist noted that the plaintiff had suffered from
some level of double vision prior to his brain surgery and that
he had a prescription for prism glasses.

The request was not

identified as urgent and did not seek surgery.
the request.

The URC denied

The University of Connecticut Medical Center did

not have a pediatric strabismologist on staff and the consult
would have required transportation to a private facility.

Noting

that the plaintiff’s vision was functional, the URC recommended
an alternate plan, treatment with glasses and concluded that the
requested service was not a medical necessity.

The plaintiff was

unhappy with the decision and refused to sign an acknowledgment
that he had received it.

Although he could have appealed the URC

denial, the plaintiff did not do so.
On June 28, 2011, the optometrist told the plaintiff that
the glasses ordered in February had been made incorrectly.

The

plaintiff stated that he would wait to correct the glasses until
he heard whether the URC would approve surgery for his eye
muscles.
On June 15, 2011, Dr. Naqvi submitted a URC request for ENT

14

care for the plaintiff.

He sought a laryngoscopy to rule out

vocal cord palsy in connection with hoarseness that the plaintiff
had developed.

The URC approved the request and the ENT visit

was held on August 17, 2011.
On August 1, 2011, the plaintiff filed a grievance against
unidentified medical staff who allegedly told him that he would
not be treated for his head, eyesight or hearing problems.

The

plaintiff did not further specify his complaints in the
grievance.

In response, a nurse told the plaintiff that he had

been scheduled for a consultation with an ENT specialist at the
University of Connecticut Health Center.

None of the defendants

were involved in responding to the grievance.
On August 20, 2011, the plaintiff submitted an inmate
request form stating that he had been told he would not receive
treatment for his eye because the condition started before he
came to Connecticut. In response, a nurse indicated that the
plaintiff had been seen on September 16, 2011, and that paperwork
had been submitted to the URC for reconsideration. On September
16, 2011, the plaintiff had met again with the optometrist who
had previously treated him. Following this visit, the optometrist
submitted a URC request that was described as a second request
for corrective muscle surgery. The optometrist failed to note
that the first request was for a strabismology consult, not
surgery.

Relying on its previous determination that the

15

condition was mild and that the patient's vision was functional,
the URC denied the request for surgery.

Dr. Naqvi conveyed the

decision to the plaintiff.
The plaintiff was seen in the medical unit on October 20,
2011.

Records noted the recent ENT consult and the denial of the

request for a strabismology consult.
to a doctor for follow-up evaluation.
plaintiff the same day.

The plaintiff was referred
Dr. Pillai saw the

He noted extra-ocular muscle palsy on

the left side with motility (movement) problems and double vision
in the left eye.

Dr. Pillai also noted that the ENT consultant

recommended Prilosec, a heartburn medication.

Dr. Pillai

reported that the plaintiff’s New York medical records indicated
that the plaintiff had undergone a long period of tube feeding
and PEG feeding after the brain surgery, bypassing his throat.
The ENT doctor who had seen the plaintiff wanted a follow-up with
the plaintiff’s medical records, so Dr. Pillai submitted a URC
request for the consult.

This request was approved.

Dr. Pillai also submitted a second request seeking
reconsideration of the decision denying the strabismology
consult.

He noted that the plaintiff was claiming that, since

2008, he had left extra-ocular muscle motility disorder with left
lateral and medial gaze palsy, crossed eyes and double vision.
Relying on the previous rationale, the URC denied this request.
Dr. Pillai explained the decision to the plaintiff who requested

16

that this denial be appealed.

The appeal noted significant

double vision, a rationale not previously presented to the URC.
During previous reviews, the panel understood the plaintiff’s
symptoms to be mild.

The appeal was approved in April 2012, and

the plaintiff was subsequently scheduled for a strabismology
consult.
The plaintiff had the second ENT consult in January 2012.
The plaintiff underwent testing on his throat which showed
excellent airway and inspiration.

The doctor noted that the

plaintiff had good voicing with a defect to his vocal cords and a
problem with phlegm.

The doctor recommended PRN care, i.e., as

needed, and, if the plaintiff contracted an upper respiratory
infection, careful control of mucus with fluids and a mucusthinning agent.

There were no immediate physician orders or

recommendations for care as a result of the second ENT consult.
The plaintiff’s medical records from New York and Connecticut
include no recommendation for ENT surgery and no URC requests for
ENT surgery were submitted to the panel.
In March 2012 the plaintiff reported for sick call
complaining that he had no hearing in his left ear.

He stated

that he lost hearing in his left ear after a procedure to his
throat. The plaintiff requested a hearing aid.
him to see a facility doctor.

Staff scheduled

Dr. Pillai ordered an appointment

concerning the plaintiff's hearing.

17

Also in March 2012, the plaintiff sought medical clearance
to be an inmate kitchen worker.

This position involved

maneuvering around a kitchen with hot items, knives and people
moving about as they worked. Dr. Pillai approved the plaintiff
for this work assignment.
In April 2012 the plaintiff again saw the ophthalmologist
who had first recommended the strabismology consult. On April 25,
2012, the ophthalmologist recommended that the plaintiff get
glasses with prisms, reiterated his recommendation for a
strabismology consult and requested a follow-up appointment in
two or three months.
up visit.

The URC approved the request for a follow-

For the first time, the URC request described the

plaintiff’s double vision as very bothersome.
The plaintiff suffers from paralytic diplopia (double
vision)caused by loss of nerve functioning which leads to muscle
paralysis. The course of paralytic diplopia is unpredictable.
The condition could have improved, stabilized or, as in the
plaintiff’s case, worsened.

In the first year of his Connecticut

incarceration, the plaintiff’s double vision was considered mild
and only worsened over time.
The ophthalmologist also submitted another URC request for a
strabismology consult.

In light of the approval of the appeal,

the URC approved this request on April 30, 2012.
with prisms were ordered the same day.

18

The glasses

The URC panel was not

involved in scheduling the strabismology consult.

Other

personnel were corresponding with schedulers and the
ophthalmologist’s office to schedule the visit.

Because there

was no strabismologist at the University of Connecticut Health
Center, issues of insurance, payment and security had to be
addressed before the consult could occur.
On June 29, 2012, the ophthalmologist submitted a URC
request for an MRI of the plaintiff’s brain.
approved.

This request was

The plaintiff signed the acknowledgment that he

received the URC decision the day before he filed this lawsuit.
On June 29, 2012, the ophthalmologist also submitted a URC
request for the plaintiff to see a neuro-ophthalmologist.

The

strabismologist had requested that the plaintiff first see a
neuro-ophthalmologist who then would refer the plaintiff to the
strabismologist.

The URC approved this request on July 2, 2012.

The visit was scheduled by the neuro-ophthalmologist’s office for
October 11, 2012.
The MRI was performed on July 24, 2012.
the neuro-ophthalmologist on October 11, 2012.

The plaintiff saw
Four days later,

the neuro-ophthalmologist described the plaintiff’s diplopia as
severe and filed a URC request for the plaintiff to see the
strabismologist as soon as possible.

The URC approved this

request, instructing that the plaintiff be seen by the
strabismologist within one week.

19

The neuro-ophthalmologist’s

office, however, scheduled the appointment for January 2013.

URC

personnel were informed that this was the first available adult
appointment and the neuro-ophthalmologist indicated that this was
acceptable. The plaintiff saw the strabismologist on January 23,
2013.

The strabismologist's notes of the visit indicate that

surgery could be performed if desired, but did not indicate that
surgery was a medical necessity.

The surgery center the

strabismologist used would not allow inmate patients.

The

plaintiff underwent surgery for his double vision with a
different strabismologist in April 2013.

III. Discussion
The defendants move for summary judgment on the grounds
that, as members of the URC, they did not provide inadequate
medical treatment and they are protected by qualified immunity.
The defendants also contend that defendant Wu was not a member of
the URC and, therefore, had no involvement in the decisions that
are the basis of the plaintiff’s claims.
A.

Personal Involvement of Dr. Wu

The claims in this case are against the individual members
of the URC for decisions they made regarding the plaintiff’s
medical care.

In the Initial Review Order, the court dismissed

the claims against the URC as a separate entity and directed the
plaintiff to file an amended complaint naming the individual

20

members of the URC.

See Doc. #4.

Dr. Wu was not a member of the panel during the time
relevant to the plaintiff’s claims.
Naqvi, ¶ 8.

See Doc. #33-4, Aff. of Syed

In his memorandum in opposition to the motion for

summary judgment, the plaintiff concedes that Dr. Wu did not deny
him adequate medical care.

See Doc. #35 at 1.

As Dr. Wu was not

involved in any of the URC decisions regarding the plaintiff’s
care that are at issue in this case, the defendants’ motion for
summary judgment is granted as to all claims against Dr. Wu.
B.

Deliberate Indifference to Serious Medical Needs

The defendants argue that defendants Ruiz, Naqvi and
Farinella were not deliberately indifferent to any serious
medical need of the plaintiff.
To successfully oppose the defendants’ motion for summary
judgment on his claim for deliberate indifferent to a serious
medical need, the plaintiff must present evidence demonstrating
sufficiently harmful acts or omissions and intent to either deny
or unreasonably delay access to needed medical care or the wanton
infliction of unnecessary pain by prison personnel.
v. Gamble, 429 U.S. 97, 104-06 (1976).

See Estelle

There are both subjective

and objective components to the deliberate indifference standard.
See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).
Objectively, the alleged deprivation must be “sufficiently
serious.”

Wilson v. Seiter, 501 U.S. 294, 298 (1991).

21

The

condition must be one that may produce death, degeneration or
extreme pain.

See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d

Cir. 1996)(internal quotation marks omitted).

Subjectively, the

defendant must have been actually aware of a substantial risk
that the inmate would suffer serious harm as a result of his
actions or inactions.
(2d Cir. 2006).

Salahuddin v. Goord, 467 F.3d 263, 280

A difference of opinion regarding what

constitutes an appropriate response and treatment does not
constitute deliberate indifference to a serious medical need.
See Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).

Nor

is negligence sufficient to establish deliberate indifference to
a serious medical need. Id.
In his memorandum, the plaintiff states that a Dr. Norwood
in New York told him about a year after his brain surgery that he
needed additional surgery and recommended consultation with a
specialist.

The plaintiff has not provided any medical records

to support this statement or to show that he was scheduled for a
consultation after August 2009 while in New York.

Thus, any

argument that the URC failed to honor these recommendations is
without merit.
The plaintiff also states that a doctor at the University of
Connecticut Health Center told him that he would require
additional surgery for his eye, throat and ear.

The plaintiff

states that the doctor submitted a recommendation for the surgery

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in October 2011, but that the URC denied the request, purportedly
because of budget issues.

Again, the plaintiff provides no

information regarding this doctor or support for his statements.
Without an affidavit from the doctor or a copy of the denial
citing budgetary reasons, the plaintiff’s statements are hearsay
which is not admissible and cannot be used to oppose a motion for
summary judgment.

See Fed. R. Civ. P. 56(c)(1) (requiring that a

party cite to admissible evidence to show the existence of a
genuine dispute over a factual issue).

The plaintiff also refers

to four ENT doctors who purportedly told him he required throat
surgery.

He neither identified these doctors nor provided any

evidence to support his hearsay statements.
Dr. Naqvi has summarized all of the URC requests received
regarding the plaintiff’s care.

In October 2011 the URC denied a

request for ocular surgery, as no evidence was presented to show
that the plaintiff’s vision was seriously affected and that
surgery was a medical necessity.

The URC also denied two

requests for strabismology consults for this same reason.

Once

evidence that the plaintiff suffered serious diplopia (double
vision) was presented to the URC, it approved consults with a
strabismologist and neuro-ophthalmologist as well as ocular
surgery.

The URC also approved every request submitted seeking

an MRI of the plaintiff’s brain or ENT consults.

There is no

evidence of any request for surgery to address issues with the

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plaintiff’s throat or ear.
The plaintiff has provided no evidence in opposition to the
motion for summary judgment suggesting that the URC members were
subjectively indifferent to his care.

Even as his treating

physician, Dr. Naqvi was unaware that the plaintiff suffered what
he now characterizes as constant headaches.

The plaintiff told

Dr. Naqvi that he experiences intermittent headaches in April
2010 and did not mention them again until November 2010.

Upon

hearing the second complaint of headaches and after reviewing the
plaintiff’s New York medical records, which had finally arrived
that month, Dr. Naqvi requested an MRI.

The URC granted this

request.
The defendants state that the URC panel is not responsible
for scheduling doctor visits and the plaintiff has provided no
contrary evidence.

Thus, any claim regarding the length of time

between the URC approval of the strabismology consult and the
consult itself, or the time for any scheduled appointment,
necessarily fails.
Absent evidence showing that the URC members were made aware
of serious medical needs and disregarded those needs, the
plaintiff fails to establish a claim for deliberate indifference
to serious medical needs.

Consequently, the defendants’ motion

for summary judgment is granted as to the claims against Drs.
Ruiz, Naqvi and Farinella.

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IV.

Conclusion
The motion for summary judgment

[Doc. #33] is GRANTED.

Clerk is directed to enter judgment in favor of the defendants
and close this case.

SO ORDERED this 19th day of February 2014, at Hartford,
Connecticut.
/s/ DJS
Dominic J. Squatrito
United States District Judge

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The