Wortham v. Plourde et al

Filing 32

ORDER granting 19 Motion for Summary Judgment. Signed by Judge Dominic J. Squatrito on 9/5/14. (Glynn, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
TERRANCE WORTHAM,
Plaintiff,
v.
STEVEN J. PLOURDE, et al.,
Defendants.

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Case No. 3:12-cv-1515 (DJS)

RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
The plaintiff, Terrance Wortham, currently is incarcerated
at the Osborn Correctional Institution in Somers, Connecticut.
The remaining claim in this action is a claim against Dr.
Omprakash Pillai for deliberate indifference to serious medical
needs.

The defendant has filed a motion for summary judgment.

For the reasons that follow, the defendant’s motion is granted.
I.

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

there are no genuine issues of material fact 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 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.

Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009).

He must

present such evidence as would allow a jury to find in his favor
in order to defeat the motion for summary judgment.
Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).

Graham v.
Merely

verifying the 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) (citing cases).
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).
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.

Havey v.

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

Facts1
On or about September 11, 2008, the plaintiff slipped off a

1

The facts are taken from the parties’ Local Rule 54(a)
Statements and the exhibits provided by the parties.
2

ladder while climbing down from the top bunk in the MacDougall
Walker Correctional Institution in Suffield, Connecticut.
fell on his left knee and tore his ACL and meniscus.

He

In

September 2009, the plaintiff underwent successful surgery to
repair the damage to his left knee.
surgery.

Dr. Mazzocca performed the

After the surgery, Dr. Mazzocca met with the plaintiff

twice.
On October 21, 2009, the plaintiff had his first postoperative consultation.

Dr. Mazzocca taught the plaintiff a

range of motion exercise and told him to perform the exercise
every day.

Dr. Mazzocca noted that the plaintiff needed to

perform range of motion exercises that he had been taught.

The

plaintiff performed the stretching exercise each morning and
evening.
The plaintiff had a second consultation on December 16,
2009.

In the "Recommendations" section of the Consulation Form

completed by Dr. Mazzocca, the doctor noted a need for physical
therapy to increase strength and range of motion. See Def.’s Mem.
Ex. 4, Doc. #19-10. The Recommendations section also stated that
"THERAPEUTIC PROCEDURES MUST BE PRECERTIFIED AND SCHEDULED BY
CMHC UR [Correctional Managed Health Care Utilization Review
Committee]." Id. Although the consultation was for his left knee,
the plaintiff complained of pain in his right knee.
requested an MRI of the right knee.

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Dr. Mazzocca

The request was forwarded to

the Utilization Review Committee.

The Committee requested

further information from the institutional physician before
making a decision.

Dr. Pillai worked in the correctional

facility and was responsible for obtaining the additional
information for the Utilization Review Committee.2

After

reviewing the additional information, the Utilization Review
Committee denied the request for an MRI of the right knee.
When the plaintiff returned to the correctional facility
following surgery, he met with the defendant, Dr. Pillai.

In

January 2010, Dr. Pillai examined the plaintiff’s knee and told
the plaintiff to continue to do the range of motion exercise he
had been performing and to try to rehabilitate his knee.

The

plaintiff performed leg extensions with between ten and twenty
pounds of weights and squats without weights.
exercises about twice per week.

He did the

The plaintiff also rode an

exercise bike and performed calf raises.

As his leg became

stronger, the plaintiff increased the frequency and number of the

2

The plaintiff denies that Dr. Pillai was responsible for
gathering information for the Utilization Review Committee. He
also denies other statements. However, he identifies no
admissible evidence to support the denials. See D. Conn. L.
Civil R. 56(a)3 (“each denial in an opponent’s Local Rule 56(a)2
Statement must be followed by a specific citation to (1) the
affidavit of a witness competent to testify as to the facts at
trial and/or (2) evidence that would be admissible at trial. The
affidavits, deposition testimony, responses to discovery
requests, or other documents containing such evidence shall be
filed and served with the Local Rule ... 56(a)2 Statement[]”).
Absent the required citation, the defendant’s properly supported
statements are deemed admitted. Id.
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exercises.

He stopped performing the exercises in February 2011

due to pain in his right knee.
Although physical therapy was included in Dr. Mazzocca’s
recommendations, no doctor told the plaintiff that he would
receive physical therapy for his left knee. Dr. Pillai's role
relative to the plaintiff did not extend to physical therapy or
treatment of his left knee.

Several years after the surgery, the

plaintiff obtained a copy of the medical record containing Dr.
Mazzocca's December 16, 2009 recommendation.

The plaintiff named

Dr. Pillai as a defendant because he did not submit a specific
request for physical therapy on the left knee to the Utilization
Review Committee.
III. Discussion
The only claim remaining in this case is that Dr. Pillai was
deliberately indifferent to the plaintiff’s serious medical need
when he failed to ensure that the plaintiff received physical
therapy following surgery on his left knee as recommended by the
surgeon.

The defendant argues that the plaintiff fails to state

a cognizable deliberate indifference claim and, even if he had,
Dr. Pillai is protected by qualified immunity.
A.

Deliberate Indifference to Serious Medical Need

The defendant first contends that the plaintiff fails to
state a cognizable claim.

He argues that the plaintiff’s medical

need was not serious and he did not disregard any risk to the

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plaintiff’s health.
To successfully oppose the defendant's 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).

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).
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.
F.3d 263, 280 (2d Cir. 2006).

Salahuddin v. Goord, 467

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.

See Smith v. Carpenter, 316 F.3d 178,
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184 (2d Cir. 2003).

The fact that a prison official did not

alleviate a significant risk that he should have, but did not,
perceive does not constitute deliberate indifference to a serious
medical need.

See Farmer v. Brennan, 511 U.S. 825, 838 (1994).

First, the plaintiff has not presented evidence that he had
a serious medical need for physical therapy following his
successful knee surgery.

The medical need at issue in this case

is not the torn ACL and meniscus.
repaired during surgery.

That injury was successfully

See Def.’s Mem. Ex. A, Deposition

Transcript at 20, Doc. #19-5 at 22:19-25.

The challenged action

is the failure to provide physical therapy following surgery.
The court must focus on the specific risk of harm faced by the
plaintiff as a result of the challenged deprivation of care
rather than the underlying condition.

See Smith v. Carpenter,

316 F.3d 178, 186 (2d Cir. 2003) (for purposes of considering the
issue of serious medical need, the court found it "appropriate to
focus on" the specific treatment alleged to have been denied to
the prisoner rather than on his underlying medical condition).
The plaintiff relies on the surgeon’s notation in the
Recommendations section of the Consultation Form.

The form

clearly indicates that any recommended treatment must be approved
by the Utilization Review Committee.

See Def.’s Mem. Ex. 4, Doc.

#19-10. Thus, the surgeon’s recommendation for physical therapy
was not a prescribed treatment required to be followed by medical

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staff at the correctional facility.

Another court within this

circuit has held that a need for physical therapy does not
constitute a serious medical need.

See Salaam v. Adams, No.

9:03-CV-0517 (LEK/GHL), 2006 WL 2827687, at *10 (N.D.N.Y. Sept.
29, 2006) (complaints of back pain requiring treatment with pain
relievers and physical therapy did not constitute a sufficiently
serious medical need to invoke Eighth Amendment protection).

A

recommendation for physical therapy, without more, does not
constitute a serious medical need.
Further, even if the court were to find that physical
therapy following surgery was a serious medical need, Dr. Pillai
argues that he was not deliberately indifferent to that need.
The plaintiff faults Dr. Pillai for failing to submit a specific
request for physical therapy to the Utilization Review Committee.
In addition to mentioning physical therapy, Dr. Mazzocca
also noted on the December 16, 2009 Consultation Form that the
plaintiff "needs to do ROM [range of motion] exercises" and
"needs to kneel down 1-5 times a day to [increase] flexion."
Def.’s Mem. Ex. 4, Doc. #19-10.

The plaintiff conceded at his

deposition that the Dr. Mazzocca had instructed him in range of
motion exercises to perform daily.
36:2-10.

See Doc. #19-5 at 35:12-21;

He also stated that, in January 2010, Dr. Pillai told

him to continue to do the range of motion exercises and try to
restrengthen the muscles around his knee.

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See Doc. #19-5 at

51:4-16. In cases where an inmate was instructed on exercises to
do on his own, courts have dismissed claims for deliberate
indifference to a serious medical need to receive physical
therapy.

See, e.g., Villareal v. Walker, No. 06-CV-3266, 2009 WL

801637, at *7 (C.D. Ill. Mar. 24, 2009) (granting summary
judgment on claim that doctor was deliberately indifferent to
serious medical need for physical therapy where doctor showed
plaintiff exercises to do on his own rather than send him to a
physical therapist; fact that exercises did not work to restore
function of hand does not support inference of deliberate
indifference).
In light of the instruction provided by Dr. Mazzocca, the
court concludes that Dr. Pillai’s failure to submit a request for
physical therapy to the Utilization Review Committee was, at
most, negligence which is not cognizable under section 1983.

The

defendant’s motion for summary judgment is granted.
B.

Qualified Immunity

The defendant also contends that he is protected by
qualified immunity.

A state official is protected by qualified

immunity from a suit for damages unless the plaintiff can show
that the state official violates a statutory or constitutional
right and that the right was “clearly established” at the time of
the alleged violation.

Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.

Ct. 2074, 2080 (2011) (quoting Harlow v. Fitzgerald, 457 U.S.

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800, 818 (1982)).

“A Government official’s conduct violates

clearly established law when, at the time of the challenged
conduct, the contours of a right are sufficiently clear that
every reasonable official would have understood that what he is
doing violates that right.”
marks omitted).

Id. at 2083 (internal quotation

The court does “not require a case directly on

point, but existing precedent must have placed the . . .
constitutional question beyond debate.”

Id.

“If an official’s

conduct did not violate a clearly established constitutional
right, or if the official reasonably believed that his conduct
did not violate such a right, then he is protected by qualified
immunity.”

Walker v. Schult, 717 F.3d 119, 126 (2d Cir. 2013).

When considering a claim of qualified immunity, the court need
not consider these questions in any particular order.

See

Pearson v. Callahan, 555 U.S. 223, 236 (2009).
In opposition to the motion, the plaintiff argues that it is
not clear that Dr. Pillai is a state actor or that he seeks
damages from Dr. Pillai in his individual capacity.

Both

arguments are without merit.
Dr. Pillai is employed at the University of Connecticut
Health Center and works at Connecticut correctional facilities to
provide health care to inmates.

As the University of Connecticut

Health Center is a state agency, Dr. Pillai is a state actor.
addition, the plaintiff seeks only damages on this claim.

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The

In

Eleventh Amendment precludes a claim for damages against a state
official in his official capacity.
U.S. 159, 169 (1985).

See Kentucky v. Graham, 473

Thus, the only way the plaintiff could

recover damages from Dr. Pillai is to name him as a defendant in
his individual capacity.
In light of the law discussed above, the court concludes
that a reasonable official in Dr. Pillai’s position would not
understand that encouraging an inmate to perform exercises he was
taught by a doctor, rather than sending him to physical therapy,
violated the inmate’s constitutional rights.

Accordingly, Dr.

Pillai also would be protected by qualified immunity.
IV.

Conclusion
The defendant’s motion for summary judgment [Doc. #19] is

GRANTED.

The Clerk is directed to enter judgment and close this

case.
SO ORDERED this 5th

day of September 2014, at

Hartford, Connecticut.

/s/ DJS
Dominic J. Squatrito
United States District Judge

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