Michalski v. Ruiz et al
Filing
69
ORDER granting 60 Motion for Summary Judgment. The Clerk of the Court is respectfully directed to close this case.Signed by Judge Victor A. Bolden on 1/31/2020. (Leon, Noel)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MARCO A. MICHALSKI,
Plaintiff,
v.
No. 3:17-cv-1516 (VAB)
RICARDO RUIZ & SAMUEL
BURKOWITZ,
Defendants.
RULING AND ORDER ON MOTION FOR SUMMARY JUDGMENT
Marco Michalski (“Plaintiff”), incarcerated at the Osborn Correctional Institution
(“Osborn”) and proceeding pro se, filed a Complaint under 42 U.S.C. § 1983, alleging that Drs.
Ricardo Ruiz and Samuel Berkowitz (collectively “Defendants”) failed to provide him with
medical treatment in violation of his rights under the Eighth Amendment to the U.S.
Constitution. Defendants have moved for summary judgment.
For the following reasons, Defendants’ motion for summary judgment is GRANTED.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A.
Factual Allegations1
Mr. Michalski has a history of foot issues relating to clubfeet predating his incarceration.
See Pl.’s Ex. 2, ECF No. 62-3 at 14-18 (Apr. 30, 2019) (Scott Green, Orthopedic Assocs. of
The District of Connecticut’s Local Rule 56(a) requires that a non-moving party’s Statement of Material Facts in
Opposition to Summary Judgment “shall include . . . a response to each paragraph admitting or denying the fact
and/or objecting to the fact as permitted by Federal Rule of Civil Procedure 56(c).” D. Conn. L. Civ. R. 56(a)2(i).
Furthermore, “[e]ach denial . . . must be followed by a specific citation to (1) the affidavit of a witness competent to
testify as to the facts at trial, or (2) other evidence that would be admissible at trial.” Id. 56(a)3. “When a party fails
to appropriately deny material facts set forth in the movant’s Rule 56(a)(1) statement, those facts are deemed
admitted.” SEC v. Global Telecom Servs. L.L.C., 325 F. Supp. 2d 94, 109 (D. Conn. 2004).
1
To the extent that Mr. Michalski’s Rule 56(a)2 Statement of Material Facts fails to comply with Local Rule 56(a)2
and (a)3 and fails to point to evidence in the record, this Court deems the corresponding facts in the Defendant’s
1
Windham Cty. (notes regarding evaluations of Mr. Michalski in 2000 and 2001)). When Mr.
Michalski was fifteen years old, a physician evaluating him noted that “[h]e’s had problems and
pain with his feet and ankles for his entire 15 year life,” and recommended medications including
Tylenol and Ibuprofen as well as physical therapy. Id. at 17 (entry date July 26, 2001). He also
noted that “Marco may ultimately require some surgical procedures to realign his foot when he is
fully grown.” Id.
In late 2016, Mr. Michalski sought medical attention for foot issues while incarcerated at
Cheshire Correctional Institute (“Cheshire”). See Statement of Material Facts ¶ 1, ECF No. 60-12
(Apr. 22, 2019) (“Defs.’ SOMF”); Pl.’s Ex. 4, ECF No. 62-3 at 23 (Inmate Request Form, Conn.
Dep’t of Corr. (Jan. 2, 2017)); Pl.’s Ex. 8, ECF No. 62-3 at 32 (Inmate Request Form, Conn.
Dep’t of Corr. (Dec. 27, 2016)). Since being incarcerated but before the events underlying this
lawsuit, Mr. Michalski had requested to be seen by a specialist in podiatry for his foot issues at
least once, in October 2010. Pl.’s Ex. 1, ECF No. 62-3 at 10 (Apr. 30, 2019) (Clinical Record,
Univ. of Conn. Health Ctr. Corr. Managed Health Care (entry date Oct. 1, 2010)).
Between January and May 2017, Mr. Michalski submitted multiple Inmate Request
Forms and Administrative Remedy Forms complaining that he had not been seen for his foot
issues or that his issues had not been adequately addressed. See Pl.’s Ex. 8, ECF No. 62-3 at 3248 (Inmate Request Forms and Inmate Admin. Remedy Forms, Conn. Dep’t of Corr. (Dec. 27,
2016 through May 2, 2017)). Each form was acknowledged with notes stating what follow up
Mr. Michalski had received or would receive. Id.
On January 22, 2017, Mr. Michalski’s clinical record noted that he had stated “he was
unable to address the issue of his remedy (feet) when last meeting with the M.D.” Defs.’ Ex. A,
Local Rule 56(a)1 Statement to be admitted for purposes of this motion, where those asserted facts are supported by
admissible evidence. The Court will not rely on assertions that are unsupported by admissible evidence in the record.
2
ECF No. 52 (Clinical Record, Univ. of Conn. Health Ctr. Corr. Managed Health Care (entry date
Jan. 22, 2017)).
On March 1, 2017, Mr. Michalski was seen by Dr. Ruiz, a physician employed by the
Department of Correction, who noted that he had “chronic Pedis Planus.” Defs.’ SOMF ¶ 3;
Defs.’ Ex. A, ECF No. 52 (Clinical Record, Univ. of Conn. Health Ctr. Corr. Managed Health
Care (entry date Mar. 1, 2017)); Ruiz Decl. ¶ 2-3, ECF No. 65-1 (May 16, 2019). Dr. Ruiz noted
that he would make a Utilization Review Request for podiatry. Defs.’ SOMF ¶ 5.
On March 10, 2017, the Utilization Review Committee approved Mr. Michalski’s request
for shoe inserts. Defs.’ Ex. F, ECF No. 57 (UR Request Response, Univ. of Conn. Health Ctr.
Corr. Managed Health Care (Mar. 10, 2017)).
On March 23, 2017, insoles arranged for by Dr. Ruiz were issued to Mr. Michalski.
Defs.’ SOMF ¶ 6; Defs.’ Ex. F, ECF No. 57 (Consultation Form, Univ. of Conn. Health Ctr.
Corr. Managed Health Care (Mar. 23, 2017)).
On April 26, 2017, Dr. Ruiz made another Utilization Review Request. Defs.’ SOMF ¶ 7.
In the request, Dr. Ruiz stated that Mr. Michalski had a “history of pedis planus which had
required bilateral steroid injections (pre-DOC)” and “a history of congenital Clubfoot which was
treated with shoes (no surgery casting).” Defs.’ Ex. B, ECF No. 53 (UR Request Response, Univ.
of Conn. Health Ctr. Corr. Managed Health Care (Apr. 26, 2017)). Dr. Ruiz also stated that Mr.
Michalski “recently had shoe inserts given to him without relief” and “request[ed] a podiatry
evaluation for a possible steroid injection.” Id.
On May 4, 2017, the Utilization Review Committee approved Dr. Ruiz’s request for a
podiatry consult. Defs.’ Ex. D, ECF No. 55 at 3 (UR Request Response, Univ. of Conn. Health
Ctr. Corr. Managed Health Care (May 4, 2017)).
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On June 5, 2017, Dr. Berkowitz examined Mr. Michalski at the University of Connecticut
Hospital. Id. at 2 (Consultation Form, Univ. of Conn. Health Ctr. Corr. Managed Health Care
(June 5, 2017)); Defs.’ SOMF ¶ 9-10; Defs.’ Ex. E, ECF No. 56 (Clinical Record, UConn Health
(June 5, 2017)). Dr. Berkowitz found that while “Marco presents with a history of clubfoot as a
child” and “complains today of ‘tightness’ of his right foot with intermittent pain that can be
disabling,” his “impression is that Marco is normal on examination” and that he “may be having
attacks of gout.” Pl.’s Ex. 5, ECF No. 62-3 at 25 (Medical Note, UConn Health Corr. Managed
Health Care (June 5, 2017)); Berkowitz Decl. ¶ 4, ECF No. 67 (July 2, 2019). He found that Mr.
Michalski “does not require follow up.” Id.
On June 13, 2017, Mr. Michalski’s clinical record notes that upon direction from Mary
Ellen Castro, the Director of Health Services, an order would be placed for outside community
footwear. Michalski Decl. ¶ 24, ECF No. 62-3 at 5 (Apr. 30, 2019); Pl.’s Ex. 3, ECF No. 62-3 at
20 (Clinical Record, Univ. of Conn. Corr. Managed Health Care (entry date June 13, 2017)).
On February 12, 2018, Dr. Berkowitz examined Mr. Michalski and found that he
“presents with a protracted history of primarily right foot pain” and a “history of clubfoot treated
successfully with shoe.” Defs.’ Ex. G, ECF No. 58 (Medical Note, UConn Health Corr. Managed
Health Care (Feb. 13, 2018)). Dr. Berkowitz noted that a report dated October 11, 2017, had
found Mr. Michalski’s feet as “being within normal limits,” but now recommended “a
corticosteroid injection.” Id.
On April 23, 2018, Dr. Berkowitz examined Mr. Michalski again, stating that “[t]his is a
follow up visit apparently. . . . I do not have the note from my previous visit.” Def.’s Ex. H, ECF
No. 59 (Medical Note, UConn Health Center Corr. Managed Health Care (Apr. 23, 2018)). Mr.
Michalski stated that he had pain in both arches and that he wanted injections. Id. But this time
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Dr. Berkowitz stated that his “impression is that Marco has bilateral plantar fasciitis,” which is
“not amenable to corticosteroid injection,” and instead “recommended plantar fascia stretching.”
Id. He stated that Mr. Michalski did not require follow up. Id.
B.
Procedural History
On September 8, 2017, Mr. Michalski, while incarcerated at Cheshire, filed a Complaint
against Drs. Ruiz and Berkowitz.2 Compl., ECF No. 1 (Sept. 8, 2017). He alleged that
Defendants were deliberately indifferent to his medical needs in violation of his rights under the
Eighth Amendment because they failed to provide him medical treatment for clubfeet. Id.
On March 29, 2018, Mr. Michalski was transferred to Osborn. Notice of Change of
Address, ECF No. 10 (Apr. 9, 2018).
On June 12, 2018, the Court issued an Initial Review Order permitting Mr. Michalski’s
deliberate indifference claims to proceed against Defendants in their individual and official
capacities for injunctive and declaratory relief, and against Defendants in their individual
capacities for damages. Initial Rev. Order, ECF No. 13 (June 12, 2018).
On April 22, 2019, Defendants moved for summary judgment. Mot. Summ. J., ECF No.
60 (Apr. 22, 2019). In support of their motion, Defendants submitted a memorandum of law, a
statement of material fact, declarations of each Defendant, and eight exhibits under seal which
related to Mr. Michalski’s medical care. Mem. Summ. J., ECF No. 60-1 (Apr. 22, 2019) (“Defs.’
Mem.”); Statement of Material Facts, ECF No. 60-12 (Apr. 22, 2019) (“Defs.’ SOMF”); Ruiz
Defendant’s name is spelled “Burkowitz” in the case caption and sometimes in filings, but is spelled “Berkowitz”
in other places, including his Declaration. The Court will use “Berkowitz” everywhere except the case caption, since
the Defendant himself appears to use that spelling.
2
5
Decl., ECF No. 65-1 (May 16, 2019); Berkowitz Decl., ECF No. 67 (July 2, 2019); Defs.’ Exs.
A-H, ECF Nos. 52-59 (Apr. 22, 2019).
On April 30, 2019, Mr. Michalski filed an opposition to the motion for summary
judgment. Opp’n to Summ. J., ECF No. 62 (Apr. 30, 2019). In support of his opposition, Mr.
Michalski filed a memorandum of law, a statement of material fact, a declaration, and ten
exhibits relating to his medical care. Mem. in Supp. of Opp’n to Summ. J., ECF No. 62-2 (Apr.
30, 2019) (“Pl.’s Mem.”); Statement of Disputed Factual Issues, ECF No. 62-1 (Apr. 30, 2019)
(“Pl.’s SOMF”); Michalski Decl., ECF No. 62-3 at 1-8 (Apr. 30, 2019); Pl.’s Exs. 1-10, ECF No.
62-3 at 9-55 (Apr. 30, 2019).
II.
STANDARD OF REVIEW
A court will grant a motion for summary judgment if the record shows no genuine issue
as to any material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). The moving party bears the initial burden of establishing the absence of a genuine dispute
of material fact. Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986). The non-moving party may
defeat the motion by producing sufficient evidence to establish that there is a genuine issue of
material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Id. at 247–48 (emphasis in the original).
“[T]he substantive law will identify which facts are material.” Id. at 248. “Only disputes
over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Id.; see Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.
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1996) (“[M]ateriality runs to whether the dispute matters, i.e., whether it concerns facts that can
affect the outcome under the applicable substantive law.” (citing Anderson, 477 U.S. at 248)).
“The inquiry performed is the threshold inquiry of determining whether there is the need
for a trial—whether, in other words, there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either
party.” Anderson, 477 U.S. at 250. When a motion for summary judgment is supported by
documentary evidence and sworn affidavits and “demonstrates the absence of a genuine issue of
material fact,” the non-moving party must do more than vaguely assert the existence of some
unspecified disputed material facts or “rely on conclusory allegations or unsubstantiated
speculation.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (citation
omitted).
The party opposing the motion for summary judgment “must come forward with specific
evidence demonstrating the existence of a genuine dispute of material fact.” Id. “If the evidence
is merely colorable, or is not significantly probative, summary judgment may be granted.”
Anderson, 477 U.S. at 250 (citing Dombrowski v. Eastland, 387 U.S. 82, 87 (1967); First Nat’l
Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)).
A court must view any inferences drawn from the facts in the light most favorable to the
party opposing the summary judgment motion. See Dufort v. City of N.Y., 874 F.3d 338, 343 (2d
Cir. 2017) (“On a motion for summary judgment, the court must ‘resolve all ambiguities and
draw all permissible factual inferences in favor of the party against whom summary judgment is
sought.’”). A court will not draw an inference of a genuine dispute of material fact from
conclusory allegations or denials, see Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011),
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and will grant summary judgment only “if, under the governing law, there can be but one
reasonable conclusion as to the verdict,” Anderson, 477 U.S. at 250.
III.
DISCUSSION
The Eighth Amendment prohibits the infliction of “cruel and unusual punishments,” U.S.
Const. amend. VIII, which includes punishments that “involve the unnecessary and wanton
infliction of pain.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Gregg v.
Georgia, 428 U.S. 153, 173 (1976)). Although the Constitution does not require “comfortable”
prison conditions, the Eighth Amendment imposes certain duties on prison officials, to “ensure
that inmates receive adequate food, clothing, shelter and medical care” and are confined in
“safe[]” living conditions. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994) (internal quotation
marks and citations omitted).
The Supreme Court and the Second Circuit have held that deliberate indifference by
prison officials to a prisoner’s serious medical needs constitutes cruel and unusual punishment in
violation of the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Chance,
143 F.3d at 702. However, “a complaint that a physician has been negligent in diagnosing or
treating a medical condition does not state a valid claim of medical mistreatment under the
Eighth Amendment. Medical malpractice does not become a constitutional violation merely
because the victim is a prisoner.” Estelle, 429 U.S. at 106.
To establish a Section 1983 claim for deliberate indifference to a serious medical or
dental need, a plaintiff must show that he meets a two-pronged test, requiring an analysis of the
claim both objectively and subjectively.
Under the objective prong, the plaintiff’s medical need or condition must be “a serious
one.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). A medical condition may not initially
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be serious, but may become serious because it is degenerative, and if left untreated or neglected
for a long period of time, will “result in further significant injury or the unnecessary and wanton
infliction of pain.” Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000). Factors relevant to the
seriousness of a medical or dental condition include whether “a reasonable doctor or patient
would find [it] important and worthy of comment,” whether the condition “significantly affects
an individual’s daily activities,” and whether it causes “chronic and substantial pain.” Chance,
143 F.3d at 702 (internal quotation marks and citations omitted).
Under the subjective prong, the action or inaction of a prison official, medical staff
member, or dental provider must have constituted recklessness. See Salahuddin v. Goord, 467
F.3d 263, 272 (2d Cir. 2006). The official must have been actually aware of a substantial risk
that the inmate would suffer serious harm as a result of his or her actions or inactions. Id. at 280.
Mere negligent conduct does not constitute deliberate indifference. See id. (“[R]ecklessness
entails more than mere negligence; the risk of harm must be substantial and the official’s actions
more than merely negligent.”); Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (stating
that medical malpractice alone does not amount to deliberate indifference).
Defendants argue that because Mr. Michalski’s “feet have been consistently found to be
normal and/or not requiring medical follow up,” he cannot show that his foot issues constitute
serious medical need. Def.’s Mem. at 7.
Mr. Michalski argues that he has shown he has a serious medical condition by showing
that he has experienced serious pain associated with his feet for a long time, that doctors
including Defendants have commented on his foot issues, and that his condition affects his daily
activities. Pl.’s Mem. at 5-9.
The Court agrees.
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Courts have found that conditions which cause chronic pain can amount to a serious
medical need, especially when such pain has persisted for an extended period of time. See Smalls
v. Wright, No. 3:16-cv-02006 (JCH), 2018 WL 3581695, at *3 (D. Conn. July 25, 2018) (finding
that a plaintiff who repeatedly complained of severe back pain raised a genuine issue of material
fact as to whether his back injury qualified as a serious medical need); Rosario v. Anson, No.
9:12-cv-1506 BKS/CFH, 2015 WL 5692550, at *10 (N.D.N.Y. Sept. 28, 2015) (finding that an
incarcerated plaintiff “ha[d] demonstrated a material question of fact as to whether his knee pain
significantly affected his daily activities and caused him chronic and substantial pain.”);
Benjamin v. Kooi, No. 9:07-cv-0506, 2010 WL 985844, at *7 (N.D.N.Y. Feb. 25, 2010), report
and recommendation adopted, No. 9:07-cv-0506 (LEK/DRH), 2010 WL 985823 (N.D.N.Y. Mar.
17, 2010) (“Depending upon the facts presented, severe back pain, especially if lasting an
extended period of time, and migraine headaches may qualify as ‘serious medical needs’ under
the Eighth Amendment.” (internal citations omitted)); Faraday v. Lantz, No. 3:03-cv-1520
(SRU), 2005 WL 3465846, at *5 (D. Conn. Dec. 12, 2005) (finding that persistent complaints of
“lower back pain caused by herniated, migrated discs [and] sciatica” causing severe pain
constitutes a serious medical need).
Mr. Michalski has established a genuine issue of material fact as to whether his foot
issues constitute a serious medical need. He has presented evidence that he has experienced pain
relating to his feet since at least age 15, Pl.’s Ex. 2, ECF No. 62-3 at 14-18 (Apr. 30, 2019) (Scott
Green, Orthopedic Assocs. of Windham Cty. (notes regarding evaluations of Mr. Michalski in
2000 and 2001)), and that he complained of pain in his feet while incarcerated beginning in late
2016, Pl.’s Ex. 4, ECF No. 62-3 at 23 (Inmate Request Form, Conn. Dep’t of Corr. (Jan. 2,
2017)); Pl.’s Ex. 8, ECF No. 62-3 at 32 (Inmate Request Form, Conn. Dep’t of Corr. (Dec. 27,
10
2016)). Mr. Michalski stated in his medical requests that his foot pain was interfering with his
ability to walk and to get up and down from his bunk. See Pl.’s Ex. 8, ECF No. 62-3 at 34-36, 39,
41-43 (Inmate Request Forms, Conn. Dep’t of Corr. (Feb. 10, 2017, Feb. 12, 2017, Feb. 21,
2017, Mar. 28, 2017, Mar. 30, 2017, May 2, 2017)). Health care providers, including Drs. Ruiz
and Berkowitz, commented on and took actions to relieve Mr. Michalski’s pain in 2017 and
2018, including obtaining inserts for Mr. Michalski. See, e.g., Defs.’ Ex. A, ECF No. 52 (Clinical
Record, Univ. of Conn. Health Ctr. Corr. Managed Health Care (entry date Mar. 1, 2017));
Defs.’ Ex. F, ECF No. 57 (Consultation Form, Univ. of Conn. Health Ctr. Corr. Managed Health
Care (Mar. 23, 2017)); Defs.’ Ex. B, ECF No. 53 (UR Request Response, Univ. of Conn. Health
Ctr. Corr. Managed Health Care (Apr. 26, 2017)); Defs.’ Ex. D, ECF No. 55 at 2 (Consultation
Form, Univ. of Conn. Health Ctr. Corr. Managed Health Care (June 5, 2017)); Pl.’s Ex. 5, ECF
No. 62-3 at 25 (Medical Note, UConn Health Corr. Managed Health Care (June 5, 2017)); Pl.’s
Ex. 3, ECF No. 62-3 at 20 (Clinical Record, Univ. of Conn. Corr. Managed Health Care (entry
date June 13, 2017)); Defs.’ Ex. G, ECF No. 58 (Medical Note, UConn Health Corr. Managed
Health Care (Feb. 13, 2018)); Def.’s Ex. H, ECF No. 59 (Medical Note, UConn Health Center
Corr. Managed Health Care (Apr. 23, 2018)). This is sufficient evidence to create a genuine issue
of material fact regarding the seriousness of Mr. Michalski’s medical condition.
As to the subjective element, Defendants argue that each Defendant met with and
examined Mr. Michalski on multiple occasions and took actions to address his foot issues, and
that they “were doing everything within their power to assist that plaintiff.” Def.’s Mem. at 8-9.
They argue that their conduct “in no way evidences the type of conduct illustrative of deliberate
indifference to the needs of the plaintiff.” Id.
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Mr. Michalski argues that Defendants gave him improper treatment and “failed to inquire
into essential facts that are necessary to make a professional judgment,” for example recording
“numerous ‘impressions,’ yet fail[ing] to investigate to determine if those impressions were
accurate” by offering any testing. Pl.’s Mem. at 11.
The Court disagrees.
“It is well-established that mere disagreement over the proper treatment does not create a
constitutional claim.” Chance, 143 F.3d at 703. Additionally, “[t]he plaintiff’s own opinions
about proper diagnosis and treatment are not admissible evidence and do not create a genuine
dispute of fact.” Morales-Rojas v. Ruiz, No. 3:17-cv-1434 (MPS), 2019 WL 1025245, at *6 (D.
Conn. Mar. 4, 2019); see also Fuller v. Lantz, 549 F. App’x 18, 20 (2d Cir. 2013) (finding that
affidavits of an incarcerated plaintiff and her acquaintances, none of whom were medical
professionals, were “insufficient to create a genuine dispute of fact as to the propriety of a
medical diagnosis”).
A plaintiff must show that the defendant acted or failed to act with “culpable
recklessness,” or “a conscious disregard of a substantial risk of serious harm.” Id. (quoting
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). A defendant therefore must have been
“actually aware of a substantial risk that serious inmate harm would result.” Salahuddin, 467
F.3d at 280.
In a similar case, another court in this district granted summary judgment to defendants
because the plaintiff had not presented any “evidence that the evaluation and diagnosis of his
foot condition by Dr. Berkowitz . . .” or “the treatment by Dr. Ruiz . . . constituted ‘a conscious
disregard of a substantial risk of serious harm’ to the condition of his left foot such that it rose to
the level of ‘culpable recklessness.’” Morales-Rojas, 2019 WL 1025245, at *7; see also Daniels
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v. Murphy, No. 3:11-cv-00286 (SRU), 2014 WL 3547235, at *7, *9 (D. Conn. July 17, 2014)
(“The claim that Dr. Wright did not provide Daniels with his requested treatment [an ankle foot
orthotic] does not constitute deliberate indifference on the part of Dr. Wright, but rather Daniels’
disagreement with Dr. Wright’s diagnosis of the severity of the conditions and treatment of those
conditions. Such a claim is not cognizable under the Eighth Amendment.”); Davidson v. Scully,
155 F. Supp. 2d 77, 84 (S.D.N.Y. 2001) (finding that an incarcerated plaintiff’s allegations that
“DOCS did not properly treat him because DOCS denied him particular orthopedic shoes,
orthotics, and surgery, which he claims are necessary to treat his podiatric problems,” constituted
a disagreement about the type of treatment that the inmate believed he should receive and did not
rise to the level of an Eighth Amendment claim that DOCS was deliberately indifferent to his
podiatric problems).
Mr. Michalski has not provided any evidence, beyond his own assertions, that the
diagnoses and treatment offered by Defendants were not based on sound medical judgment, or
that they acted with conscious disregard of serious risk of harm to Mr. Michalski.3 Indeed, the
evidence shows that Defendants repeatedly acted to try to alleviate Mr. Michalski’s pain by
arranging for multiple podiatry consults, providing shoe inserts, and finally by prescribing
plantar fascia stretching. Defs.’ Ex. A, ECF No. 52 (Clinical Record, Univ. of Conn. Health Ctr.
Corr. Managed Health Care (entry date Mar. 1, 2017)); Defs.’ Ex. F, ECF No. 57 (UR Request
Response, Univ. of Conn. Health Ctr. Corr. Managed Health Care (Mar. 10, 2017)); Defs.’ Ex. F,
ECF No. 57 (Consultation Form, Univ. of Conn. Health Ctr. Corr. Managed Health Care (Mar.
To the extent that Mr. Michalski’s deliberate indifference claim is based on delay of his treatment, he does not
present any evidence that the delay between his initial request for treatment in late 2016 and the issuance of insoles
in March 2017—or any other treatment— worsened his foot condition or increased his risk of harm. Smith v.
Carpenter, 316 F.3d 178, 186 (2d Cir. 2003) (when deliberate indifference is based on delay, courts consider the
reason for the delay and whether the delay worsened plaintiff’s condition or increased his risk of harm (citing
Chance, 143 F.3d at 702-03)).
3
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23, 2017)); Defs.’ Ex. B, ECF No. 53 (UR Request Response, Univ. of Conn. Health Ctr. Corr.
Managed Health Care (Apr. 26, 2017)); Defs.’ Ex. D, ECF No. 55 at 3 (UR Request Response,
Univ. of Conn. Health Ctr. Corr. Managed Health Care (May 4, 2017)); Id. at 2 (Consultation
Form, Univ. of Conn. Health Ctr. Corr. Managed Health Care (June 5, 2017)); Defs.’ Ex. E, ECF
No. 56 (Clinical Record, UConn Health (June 5, 2017)); Pl.’s Ex. 3, ECF No. 62-3 at 20
(Clinical Record, Univ. of Conn. Corr. Managed Health Care (entry date June 13, 2017)); Defs.’
Ex. G, ECF No. 58 (Medical Note, UConn Health Corr. Managed Health Care (Feb. 13, 2018));
Def.’s Ex. H, ECF No. 59 (Medical Note, UConn Health Center Corr. Managed Health Care
(Apr. 23, 2018)).
On this record, therefore, Mr. Michalski cannot establish a genuine issue of material fact
as to whether Dr. Ruiz or Dr. Berkowitz was deliberately indifferent to his medical needs.
IV.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED.
The Clerk of the Court is respectfully directed to close this case.
SO ORDERED at Bridgeport, Connecticut, this 31st day of January, 2020.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
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