Molina v. The City of New York et al

Filing 84

ORDER denying 61 Plaintiff's Motion for Summary Judgment; granting 70 Defendant's Motion for Summary Judgment. Ordered by Judge Edward R. Korman on 7/16/2015. (Kaye, Julia)

UNITED STATES DISTRICT COURT

NOT FOR PUBLICATION

EASTERN DISTRICT OF NEW YORK

CARLOS ECHEVERY MOLINA,
Plaintiff,
– against –

MEMORANDUM & ORDER

UNITED STATES OF AMERICA
Defendants.

11-CV-04097 (ERK)

KORMAN, J.:
Pro se plaintiff Carlos Echevery Molina (“Molina”) filed this action pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2401, 2671, arising from an incident on
May 17, 2010, in which he allegedly slipped on food droppings located on the floor of the dining
hall at the Metropolitan Detention Center (“MDC”), a federal confinement facility, causing him
to fall and injure himself. At the time of the event, Molina was incarcerated at MDC. He claims
that his fall and resulting injury were a result of the negligence of Bureau of Prisons (“BOP”)
staff, and also that he received inadequate medical treatment for his injuries.

He seeks

$1,000,000 in compensatory damages. The parties cross-move for summary judgment.
BACKGROUND
1. Factual History
In 2001, nine years before the events at issue in this case, Molina was in a motor vehicle
accident in which he fractured his sternum and right ankle. Def.’s Rule 56.1 Statement (“56.1”)

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¶ 2. 1 Since then, while in and out of federal and state custody for offenses relating to “narcotics
and substance abuse,” see id. at ¶ 1, Molina has suffered from chronic health problems, see
generally Aff. Supp. Mot. Summ. J. Ex. G (“BOP Rec.”), ECF No. 76-7. In particular, he has
sought medical care relating to falls in April 2008, May 2010, and August 2010. This lawsuit
arises principally out of the May 2010 incident and resulting medical care.
a. April 2008 Incident and Medical Care
In April 2008, while detained at a private contract facility, Molina fell from a chair and
injured his groin. See BOP Rec. 642, 644. A few months later, Molina was admitted to MDC,
where he reported continuing pain associated with this fall. 56.1 ¶ 5; BOP Rec. 617, 635–37,
642, 644. X-rays taken of his hip and leg in August 2008 were returned “negative,” BOP Rec.
683–84, presumably for fractures. An additional MRI taken of Molina’s right hip in December
2008 showed capsular thickening but not a tear or fracture. BOP Rec. 612, 676. Molina began
using a cane in late 2008 to alleviate his hip pain. See BOP Rec. 670.
On July 2, 2009, a BOP physician noted on Molina’s medical record that treatment
relating to a “thickening of the capsule anteriorly to his right hip” had been delayed. He wrote:
I explained that he has a thickening of the capsule anteriorly to his
right hip and that an appointment has been made with a specialist
who feels confident that he can treat this condidition [sic] with a
steroid injection. He asked about the delay and I told him medical
bills had not been paid. Now that the medical bills have been paid
by the BOP he will be treated very soon by this doctor.

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Molina did not timely submit a Rule 56.1 statement. Nevertheless, in light of Molina’s claim that he had not
received defendant’s Rule 56.1 statement, see Pl.’s Reply Br. 2, ECF No. 69, I will not deem a fact admitted where
plaintiff disputes it within the body of a brief or in his belated Rule 56.1 statement, or there is conflicting evidence in
the record, see Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73, 76 (2d Cir. 2001) (declining to grant summary
judgment on the basis of uncontested assertions in the moving party’s Local Rule 56.1 statement and observing that
“[a] district court has broad discretion to determine whether to overlook a party’s failure to comply with local court
rules”) (citation omitted); see also Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) (“[S]pecial solicitude
should be afforded pro se litigants generally, when confronted with motions for summary judgment . . . . [and] [p]ro
se prisoners are, of course, entitled to at least the same solicitude.”).

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BOP Rec. 525 (emphasis added); see also id. at 523 (“43 [year old] male waiting for injection
into right hip for anterior capsulitis.”). Molina also provided as hard copy exhibits to his Motion
for Sanctions Against Defendants for Failure to Produce Documents, ECF No. 62, numerous
“sick call slips” (intake forms completed by the patient) from 2009 in which he reported severe
pain and asked repeatedly for more pain medication. CT scans were taken of his right hip in
early 2010 which showed capsulitis. BOP Rec. 289.
b. May 2010 Incident and Medical Care
Molina was still using a cane in the early evening of May 17, 2010, when he lined up to
get his food tray in the dining hall of the J71 housing unit at MDC. Aff. Supp. Mot. Summ. J.
Ex. C (“Molina Dep.”) 31:13–32:6. He fell, losing consciousness. Id. at 32:10–11; 33:22–34:15.
He does not remember what the floor looked like while he was waiting in line, and did not see
the condition of the floor at the time of his fall. Id. at 36:19–20; 64:10–14. He does not recall
whether the floor was dirtier on that day than any other day. Id. at 48:10–13. Indeed, Molina
testified that he “[i]mmediately” fell “when [he] received the plate,” hitting his head on the
ground. Id. at 32:10–11, 33:15–16. He did not regain consciousness until he was being placed
on a stretcher, and was already in the medical unit by the time he “was able to open [his] eyes
well.” Id. at 36:11–13, 38:10–12. Molina alleges, however, that he was told by other inmates
that there were mashed potatoes and other food droppings on the floor when he fell. Id. at
48:16–49:4. He remembers the name of only one of these inmates. Id. at 48:16–49:4, 64:18–
65:6.
When Molina regained consciousness in the MDC medical unit, he was being treated by
physician assistant Freddy Nunez. Id. at 37:23–38:12. According to Nunez, Molina reported
that he had fallen because of a “dizzy spell.” Aff. Supp. Mot. Summ. J. Ex. B (“Nunez Decl.”) ¶

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6. Indeed, the medical record for that visit, which Nunez completed contemporaneously, states
“Pt states he had dizzy spell slipped” in a section entitled “Cause of Injury (Inmate’s Statement
of how injury occurred).” BOP Rec. 265. At his deposition, Molina testified that he did not
recall telling Nunez that he had fallen because of a dizzy spell, and instead alleged that Nunez
told him that he had “slipped.” Molina Dep. 49:4–12. Molina revised this narrative in an
affidavit attached to his reply brief, asserting that Nunez “actually told [him] ‘you slipped on
food on the floor’ [and] . . . wrote it down for the record.” Pl.’s Aff. Supp. Pl.’s Reply Br. (“Pl.’s
Aff.”) ¶ 3, ECF No. 69 at 33.
On the day of the fall, Molina was treated with Acetaminophen with Codeine, given an
ankle brace, and advised to continue to rest, elevate, and apply ice to his ankle. BOP Rec. 266–
267; Nunez Decl. ¶¶ 9–10. The following day, x-rays were taken of his ankle, which showed
“no evidence of acute abnormality.” BOP Rec. 431. Despite this finding, Molina’s medical
records from May 18, 2010, report that he suffered a fracture, requiring a cast. Id. at 263–64.
Molina was referred to an outside orthopedist, Molina Dep. 50:11–13, 51:16–52:6, and given an
air cast, id. at 61:2. He testified that instead of a cast, “[t]hey should have done treatment to me,
given—and surgery. Now the bone has welded and it mounted up.” Id. at 61:3–7.
In what appears to be a copy of his response to interrogatories attached as a hard copy
exhibit to his Motion for Sanctions, ECF No. 62, Molina raises two other concerns with his
medical treatment: first, he states that the air cast he was given for his fractured right ankle
“required use of an air pump which was taken away by the institutional officer”; second, he
alleges that, “[w]hile incarcerated at MDC, he was forced to ambulate on this broken ankle and
was not provided with a wheel chair.” A medical record dated June 7, 2010, corroborates
Molina’s statement that he did not have the air pump required for his air cast, noting that the

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“[p]ump for cast was lost.” BOP Rec. 253. Molina’s statement that he “was not provided with a
wheel chair” is, however, contradicted by his deposition testimony, in which he stated that he
was given a wheelchair and pain medication after his fall. Id. at 52:6–7. Precisely when he
received this equipment is less clear, though. In an “Inmate Request to Staff” dated May 21,
2010—four days after Molina’s fall—and attached to his Motion for Sanctions as a hard copy
exhibit, Molina stated that, despite being recommended pain medication and crutches, “right now
I have not receive[d] any of those: no medicine and no cru[t]ches.” Three days later—a full
week after the accident—physician assistant Mark Alperin noted in a medical record that he
“discussed with RN and will find patient pair of crutches.” BOP Rec. 258. Molina appears
ultimately to have received both crutches and a wheelchair. See id. at 232, 307, 315.
c. August 2010 Incident and Medical Care
Molina was subsequently transferred to Rikers Island. 56.1 ¶ 27. On August 5, 2010,
one month after his arrival, he reported to personnel that he had fallen while descending a
staircase, and was sent to an orthopedist for consultation. Aff. Supp. Mot. Summ. J. Ex. F, ECF
No. 76-6 at 12. X-rays of Molina’s head, right hip, pelvis, left shoulder, left knee, right foot,
right ankle, and cervical spine taken on the day of the reported injury found no fracture or
dislocation. Id., ECF No. 76-6 at 3–10.
Five days later, plaintiff returned to MDC. Aff. Supp. Mot. Summ. J. Ex. A (“Bork
Decl.”) ¶ 6, ECF No. 76-1. At a medical examination in August 2010, it was determined that he
would need an x-ray of his hip in light of his chronic pain. BOP Rec. 245. The record does not
indicate whether this x-ray was ever performed. He was examined again shortly thereafter in
anticipation of an upcoming transfer. Id. at 232; Bork Decl. ¶ 7. In January 2011, Molina had
additional x-rays taken of his left thumb and right ankle. BOP Rec. 183–84. The x-ray of his

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ankle came back negative for fractures, and the x-ray of his thumb was negative except for a
small ossification fragment. Id.
2. Procedural History
After duly exhausting all administrative claims, see Am. Compl. ¶ 6, ECF No. 29, Molina
filed a complaint pursuant to 42 U.S.C. § 1983, listing as defendants the City of New York, the
New York City Department of Corrections, Rikers Island Correctional Institution, Queens
Private Detention Facility, MDC, and BOP, see Compl. 1, ECF No.1. Defendants filed motions
to dismiss for failure to state a claim for relief and for lack of jurisdiction, which I granted
without prejudice to re-plead within 21 days. Order dated Feb. 1, 2012. Molina timely filed an
amended complaint raising claims under the FTCA against defendant United States.
In his amended complaint, Molina alleges that defendant violated its “obligation to
provide the inmates, including the Plaintiff, with a safe, clean and healthy environment” by
“fail[ing] in its obligation and duty to clean the floor of the ‘Mess Hall’ prior to commencing
service of food for the Dinner time [on May 17, 2010], resulting in the floor being covered
throughout with bits of food and liquid, and in particular liquid potatoes.” Am. Compl. ¶¶ 11,
13. Molina does not discuss either the April 2008 or August 2010 falls. See generally id. He
alleges that defendant was “further negligent in refusing and failing to properly address his
health care, including medical treatment, [in] having his pain assessed and managed in a timely
and medically accepted manner, [and in providing him] medication, as well as access to and
equipment he needed for treatment for his complaints and maladies.” Id. at ¶ 16. Molina does
not provide the dates of this allegedly negligent care or any other specifics about defendant’s
alleged breach. Nevertheless, he concludes that, “[a]s a result of the negligence by Defendant

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USA, by its agents, servants and/or employees, the Plaintiff sustained severe and permanent
injuries to various parts of his body including his ankle, spine, head, [and] finger.” Id. at ¶ 17.
After several extensions, discovery was closed on June 5, 2013. Order dated Mar. 14,
2013. Molina filed motions to reopen discovery on October 25, 2013, and June 13, 2014, and a
motion to compel discovery and for sanctions against defendant on September 11, 2011. See
ECF Nos. 47, 53, 55. Each of these motions focused on defendant’s alleged failure to produce
materials relating to plaintiff’s visit in May 2010 to an orthopedic specialist, who allegedly
recorded the meeting with a tape recorder. Magistrate Judge Robert Levy denied these motions
on the grounds that defendant’s counsel “advised that she has produced all records in the
government’s possession, custody and control and that there is no tape recording of a visit with a
specialist 3 days after the incident, or with any specialist at any time,” and also that “these
records, if they exist, appear to go to damages rather than liability.” See Minute Entry dated July
8, 2014; Order dated Oct. 1, 2014. I denied another, substantively identical motion for sanctions
in early 2015. See Order dated Feb. 20, 2015.
Molina’s counsel, Ishmael Gonzalez, moved to withdraw as counsel in March 2013 after
the United States Attorney provided him with medical records confirming that Molina fractured
his right ankle in the 2001 motor vehicle accident. The motion, which was based on a sealed
affidavit, was granted. Order dated Mar. 29, 2013. Although he was afforded an opportunity to
obtain counsel, see Orders dated Mar. 29, 2013, May 21, 2013, and August 27, 2013, Molina was
unsuccessful in doing so and is currently proceeding pro se, see ECF No. 46.
Defendant moved for summary judgment on October 31, 2014, and Molina cross-moved
on February 2, 2015. ECF Nos. 59, 61. I turn now to those motions.
DISCUSSION

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1. Standard of Review
When deciding cross-motions for summary judgment, “the standard is the same as that
for individual motions for summary judgment and the court must consider each motion
independent of the other.” Aviall, Inc. v. Ryder Sys., Inc., 913 F. Supp. 826, 828 (S.D.N.Y.
1996). Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A dispute about a material fact is “genuine” if the “evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). On a motion for summary judgment, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255 (citation omitted).
Nevertheless, if the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted. Id. at 250–51.
“Proceeding pro se does not otherwise relieve a litigant of the usual requirements of
summary judgment, and a pro se party’s bald assertions unsupported by evidence, are
insufficient to overcome a motion for summary judgment.” Rodriguez v. Hahn, 209 F. Supp. 2d
344, 348 (S.D.N.Y. 2002) (quoting Carbonell v. Goord, No. 99 Civ. 3208, 2000 WL 760751, at
*5 (S.D.N.Y. June 13, 2000)). Moreover, “[w]hen the burden of proof at trial would fall on the
nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to
the trier of fact on an essential element of the nonmovant’s claim.” Jaramillo v. Weyerhaeuser
Co., 536 F.3d 140, 145 (2d Cir. 2008) (citations omitted).
2. Federal Tort Claims Act
“The United States, as sovereign, is immune from suit save as it consents to be sued . . . ,
and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the

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suit.” United States v. Sherman, 312 U.S. 584, 586 (1941). The FTCA provides a waiver of the
United States’ sovereign immunity for
claims against the United States, for money damages . . . for injury
or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1). The FTCA defines government employees to include “officers or
employees of any federal agency.” 28 U.S.C. § 2671. The statute renders the United States
liable for tort claims “in the same manner and to the same extent as a private individual under
like circumstances,” except that it is not liable for interest prior to judgment or for punitive
damages. 28 U.S.C. § 2674.
3. Negligence
a. Legal Standards
“New York’s negligence law governs this controversy because, under the FTCA, the
liability of the United States for injuries caused by the negligent acts or omissions of its
employees is determined ‘in accordance with the law of the place where the act or omission
occurred.’” Citarella v. United States, No. 12-CV-2921 ADS AKT, 2015 WL 58623, at *2
(E.D.N.Y. Jan. 3, 2015) (citations omitted); see also Makarova v. United States, 201 F.3d 110,
114 (2d Cir. 2000) (“Under the FTCA, courts are bound to apply the law of the state . . . where
the accident occurred.”).
“To establish a prima facie case of negligence under New York law, three elements must
be demonstrated: (1) the defendant owed the plaintiff a cognizable duty of care as a matter of
law; (2) the defendant breached that duty; and (3) plaintiff suffered damage as a proximate result

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of that breach.” Curley v. AMR Corp., 153 F.3d 5, 13 (2d Cir. 1998) (citations omitted).
“[W]hile inferences of negligence may be drawn from circumstantial evidence, those inferences
must be the only ones which reasonably could be drawn from the evidence presented.”
Silverman v. United States, No. CV 04-5647 (ETB), 2008 WL 1827920, at *12 (E.D.N.Y. Mar.
28, 2008) (quoting Mehra v. Bentz, 529 F.2d 1137, 1139 (2d Cir. 1975)). The plaintiff is not
“required to offer evidence which positively excluded every other possible cause of the
accident,” Williams v. KFC Nat’l Mgmt. Co., 391 F.3d 411, 420 (2d Cir. 2004) (citing Ingersoll
v. Liberty Bank of Buffalo, 14 N.E.2d 828, 830 (N.Y. 1938)), but “[c]onjecture or speculation as
to a ‘possibility of causation’ is not enough to establish liability on the part of the defendant,”
Silverman, 2008 WL 1827920, at *12 (citing Mehra, 529 F.2d at 1139); see also Wang v.
Alexander’s Dep’t Store, 247 A.D.2d 467, 467–68, 668 N.Y.S.2d 104 (2d Dep’t 1998) (granting
summary judgment to defendants where plaintiffs were unable to “connect the accident to any
negligence on the part of the respondents” and the affidavit provided by plaintiffs’ expert
“consisted of sheer speculation as to any negligence on the part of the respondents and
additionally failed to connect even that alleged negligence with the [plaintiff’s] injury”).
“In order to show breach of a duty of care in a slip-and-fall case, the plaintiff must
demonstrate a genuine issue of material fact that the defendant either created the dangerous
condition or had actual or constructive notice of the condition.” Lionel v. Target Corp., 44 F.
Supp. 3d 315, 318 (E.D.N.Y. 2014); accord Riley v. Battery Place Car Park, 210 F. App’x 76,
77 (2d Cir. 2006) (summary order). “To constitute constructive notice, a defect must be visible
and apparent and it must exist for a sufficient length of time prior to the accident to permit
defendant’s employees to discover and remedy it.” Silverman, 2008 WL 1827920, at *14 (citing
Gordon v. Am. Museum of Nat. History, 67 N.Y.2d 836, 837, 492 N.E.2d 774 (1986); Tuthill v.

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United States, 270 F. Supp. 2d 395, 400 (S.D.N.Y. 2003); Hammond-Warner v. United States,
797 F. Supp. 207, 211 (E.D.N.Y. 1992)). “The plaintiff may alternatively establish constructive
notice on the part of the defendant by ‘demonstrating a recurring dangerous condition in the area
of the slip and fall that was routinely left unaddressed.’” Id. at *15 (citation omitted).
b. Merits
It has long been established that “[t]he federal government owes a duty of reasonable care
to safeguard the security of prisoners under its control,” Owens v. Haas, 601 F.2d 1242, 1249 (2d
Cir. 1979), and defendant does not contest that such a duty exists. To withstand summary
judgment, Molina must therefore produce sufficient evidence to allow a reasonable jury to find
the two remaining elements: (1) that BOP breached this duty of reasonable care; and (2) that
Molina’s injuries were proximately caused by that breach. See Curley, 153 F.3d at 13.
I turn first to causation. Molina acknowledges that he did not see any food on the floor of
the dining hall at the time of his fall, Molina Dep. 36:19–20; 64:10–14, and so relies instead on
the alleged statements by several other inmates, only one of whom he could name, that there
were mashed potatoes on the ground, Molina Dep. 48:16–49:4, 64:18–65:6. These statements
are inadmissible hearsay and thus provide neither support for Molina’s summary judgment claim
nor a reason to deny defendant’s motion. See Fed. R. Evid. 801(c); Raskin v. Wyatt Co., 125
F.3d 55, 66 (2d Cir. 1997); ABB Indus. Sys., Inc. v. Prime Tech., Inc., 120 F.3d 351, 357 (2d Cir.
1997). Moreover, the statement attributed in Molina’s affidavit to physician assistant Nunez
(“He actually told me ‘you slipped on food on the floor’”) is inconsistent with Molina’s
deposition testimony. There, he said only that, when they took him “upstairs” after he fell, he
asked Nunez what happened, and Nunez “told [him] you slipped. That’s what he answered to

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me.” Molina Dep. 49:5–7. 2 Molina did not say at his deposition that Nunez told him that he had
slipped on food. The omission in Molina’s deposition testimony precludes him from relying on
his affidavit to create an issue of fact. The rule is “well established” that “a party may not create
an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by
omission or addition, contradicts the affiant’s previous deposition testimony.” Kennedy v. City
of New York, 570 F. App’x 83, 84 (2d Cir. 2014) (quoting Hayes v. N.Y.C. Dep’t of Corr., 84
F.3d 614, 619 (2d Cir. 1996)). Indeed, the Second Circuit has held that summary judgment is
proper where there is “nothing in the record to support plaintiff’s allegations other than
plaintiff’s own contradictory and incomplete testimony” and “[n]o reasonable person would
undertake the suspension of disbelief necessary to give credit to the allegations made in the
complaint.” Jeffreys v. City of New York, 426 F.3d 549, 555 (2d Cir. 2005) (citations omitted).
This consideration aside, it is arguable whether the alleged statement by Nunez is
admissible as a statement offered against an opposing party and “made by the party’s agent or
employee on a matter within the scope of that relationship and while it existed.” Fed. R. Evid.
801(d)(2)(D). Even assuming that Nunez would have been acting within the scope of his
employment as a physician assistant in making the statement attributed to him in Molina’s
affidavit, there is no evidence—or even an allegation—that he witnessed the fall. There is no
basis on which to infer that a physician assistant would have been in the inmate dining hall, and,
indeed, Molina explained that he was treated by Nunez only once he had been taken “upstairs.”
Molina Dep. 49:5–7. Instead, any statement Nunez made would appear to have been based on
the hearsay statements of other prisoners. See Pittman by Pittman v. Grayson, 149 F.3d 111, 124
(2d Cir. 1998) (citations omitted) (holding inadmissible an employee’s statement under Fed. R.
2

Nunez’s affidavit and the contemporaneous medical record are consistent that Molina reported immediately after
the fall that he had a dizzy spell, causing him to slip. See Nunez Decl. ¶¶ 6–7; BOP Rec. 265.

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Evid. 801(d)(2)(D) because “[n]o basis ha[d] been shown for classifying” the employee’s
statement itself “either as nonhearsay or as an exception to the hearsay rule”); see also C.
Mueller & L. Kirkpatrick, 4 Fed. Evid. § 8:55, p. 451 (3rd ed. 2007).
Finally, even assuming the evidence of causation is sufficient to withstand the motion for
summary judgment, Molina has failed to establish that defendant breached a reasonable standard
of care. In a slip-and-fall case, to establish breach, Molina must show either that defendant
created the dangerous condition, or that it had actual or constructive notice of the condition. See
Lionel, 44 F. Supp. 3d at 318. Because Molina has not provided any evidence that a government
employee or agent was responsible for the presence of the food droppings in the first place, or
that BOP officials at MDC had actual notice that there was food on the floor, he can survive
summary judgment only if he has shown that these officials had constructive notice. This he has
failed to do.

While food droppings likely satisfy the “visible and apparent” criterion for

constructive notice, Molina has not demonstrated that the droppings were left on the floor “for a
sufficient length of time prior to the accident to permit defendant’s employees to discover and
remedy it.” Silverman, 2008 WL 1827920, at *14 (citations omitted). Nor, in the alternative,
has Molina demonstrated that this was “a recurring dangerous condition . . . that was routinely
left unaddressed.” Id. at *15. His speculation that the floor “could [have] be[en]” dirtier on the
day in question than on any other day, see Molina Dep. 48:10–13, is insufficient either to
establish that the floor was especially dirty on the day of his fall, or that the floor was routinely
in dangerous condition. In the absence of any evidence in support of this essential element of
Molina’s claim, summary judgment is warranted. See Jaramillo, 536 F.3d at 145.
Molina’s attempt to establish breach by relying on the doctrine of res ipsa loquitur is
unavailing. “Res ipsa loquitur is an often confused and often misused doctrine that enables a

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jury presented only with circumstantial evidence to infer negligence simply from the fact that an
event happened.” St. Paul Fire & Marine Ins. Co. v. City of N.Y., 907 F.2d 299, 302 (2d Cir.
1990). To invoke this doctrine, “the plaintiff must establish that: (1) the event was of a kind
which ordinarily does not occur in the absence of someone’s negligence; (2) it was caused by an
agency or instrumentality within the exclusive control of the defendant; and (3) it was not due to
any voluntary action or contribution on the part of the plaintiff.” Id. (citing Dermatossian v.
N.Y.C. Transit Auth., 492 N.E.2d 1200, 1204 (N.Y. 1986); Restatement (Second) of Torts §
328D (1965)). Res ipsa loquitur is generally inapposite in a slip-and-fall case, “given the
possibility that [the] plaintiff’s fall was caused by her own misstep.” See Anderson v. Skidmore
Coll., 941 N.Y.S.2d 787, 790 (3rd Dep’t 2012); see also Coale v. Metro-N. R.R. Co., 34 F. Supp.
3d 206, 219 (D. Conn. 2014) (“[Plaintiff] can satisfy neither the first nor second criteria [for res
ipsa loquitur]. Slip and fall cases often occur in the absence of negligence . . . . [and] the
possibility that someone other than [defendant] could have caused the spill [means that] this
Court cannot conclude that [defendant] had exclusive control of the substance upon which
[plaintiff] slipped.”). Molina has not established that his case is the rare exception.
I turn lastly to Molina’s assertion that he lacks sufficient evidence of causation only
because defendant has not provided video evidence captured in observation cameras located in
the dining hall, or access to inmate witnesses allegedly in defendant’s control. Pl.’s Mot. Summ.
J. & Opp’n Def.’s Mot. Summ. J. 5–6, ECF No. 61. Molina alleges that he asked for these
videos in a discovery motion, but defendant “totally ignored [it] . . . didn’t even answer that there
was no video or was lost or erased, just plainly ignored the request.” Id. at 5. In response to my
inquiry, however, the United States Attorney stated that her “records reflect that no written
request for such materials or witnesses was made by Plaintiff’s former attorney. Further, neither

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the . . . Assistant U.S. Attorney nor counsel for the [BOP] has any recollection of such request
having been made orally by Plaintiff’s former counsel.” ECF No. 81, at 1.
To the extent that Molina now seeks—yet again—to reopen discovery, his request comes
too late. The initial discovery schedule, set while Molina was still represented by counsel,
provided the parties with six months to complete factual discovery. See Minute Entry dated Mar.
1, 2012. That deadline was extended until December 14, 2012, by joint request of the parties.
See ECF Nos. 31–32 and Orders dated July 13, 2012, and Nov. 5, 2012. Molina was represented
by counsel until March 2013. See Order dated Mar. 29, 2013. After the close of discovery,
Molina filed four motions seeking to reopen discovery and to compel defendants to provide him
with documents relating to his visit to an orthopedic specialist after his May 2010 fall. See ECF
Nos. 47, 53, 55, 62. None of these four motions sought, or even mentioned, the possibility of
video documentation or inmate witnesses. In any event, the United States Attorney explains that
she “already determined during the discovery period that there was no videotape of the alleged
slip-and-fall at issue in this case, and that no MDC-Brooklyn staff had any independent
recollection of the alleged slip-and-fall incident in question.” ECF No. 81, at 1. Under these
circumstances, I decline to reopen discovery.
4. Medical Claims
a. Source of Law and Legal Standards
It is unclear from the face of the amended complaint whether Molina presents a claim of
medical malpractice or ordinary negligence. This distinction “is a subtle one, for medical
malpractice is but a species of negligence and ‘no rigid analytical line separates the two.’”
Staveley v. St. Charles Hosp., 173 F.R.D. 49, 51 (E.D.N.Y. 1997) (citing Weiner v. Lenox Hill
Hosp., 673 N.E.2d 914, 916 (N.Y. 1996)). Indeed, the elements are, in effect, identical. As with

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an ordinary negligence claim, “[t]o establish a claim of ‘medical malpractice under New York
law, a plaintiff must prove (1) that the defendant breached the standard of care in the community,
and (2) that the breach proximately caused the plaintiff's injuries.’” Milano by Milano v. Freed,
64 F.3d 91, 95 (2d Cir. 1995) (quoting Arkin v. Gittleson, 32 F.3d 658, 664 (2d Cir. 1994)).
Thus, in the typical case, the distinction between medical malpractice and ordinary negligence is
of import only where compliance with New York’s shorter statute of limitations or notice
requirements for medical malpractice claims is at issue. See, e.g., Dilworth v. Goldberg, 914 F.
Supp. 2d 433, 472 (S.D.N.Y. 2012) (citation omitted).
There is, however, another scenario in which this distinction may hold significance. New
York law provides that, in a medical malpractice case, “‘except as to matters within the ordinary
experience and knowledge of laymen, . . . expert medical opinion evidence is required’ to make
out both of these elements.” Milano by Milano, 64 F.3d at 95 (quoting Fiore v. Galang, 478
N.E.2d 188, 189 (1985)). “[I]n the view of the New York courts, the medical malpractice case in
which no expert medical testimony is required is ‘rare.’” Sitts v. United States, 811 F.2d 736,
740 (2d Cir. 1987) (citation omitted). Moreover,
even where negligence is easily within the layman’s realm of
knowledge and hence properly provable without expert testimony,
expert testimony may be required to prove that the negligence was
the proximate cause of the injury complained of, for ‘[a]lmost
every person who receives the services of a physician is sick or
disabled when he first goes to the physician. Thus there lurks the
ever present possibility that it was the patient’s original affliction
rather than the physician’s negligence which caused the ultimate
damage.’
Id. (citations omitted). Without such expert evidence, in a medical malpractice case, “the
defendant is entitled to judgment as a matter of law.” Id. Thus, where, as here, the plaintiff fails

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to produce any expert testimony in support of his claim, the distinction between a medical
malpractice claim and an ordinary negligence claim may be dispositive.
Nevertheless, because, as explained below, I find that Molina has failed to provide
sufficient evidence in support of his medical claims regardless of whether expert testimony is
required, I need not determine whether his allegations sound in medical malpractice or ordinary
negligence. I will thus proceed to analyze them under an ordinary negligence standard.
b. Merits
Because Molina received considerable medical treatment throughout his incarceration,
and failed to include in his amended complaint the dates of the allegedly inadequate care, it is
necessary to determine, first, which treatment is at issue. Significantly, Molina’s amended
complaint does not mention either his April 2008 or August 2010 falls. Rather, after alleging
that defendant’s negligence caused him to slip and fall on May 17, 2010, and noting that
“[t]hereafter, the Plaintiff complained concerning various and continuing bodily pain and
injuries,” Molina states that defendant was “further negligent in refusing and failing to properly
address his health care . . . .” Am Compl. ¶¶ 15–16 (emphasis added). In the absence of any
reference to the April 2008 or August 2010 falls, and given the amended complaint’s
chronological structure, I construe the two paragraphs alleging inadequate medical care as
pertaining only to the treatment Molina received following his May 2010 fall. 3

3

Even if Molina had properly alleged malpractice claims relating to the April 2008 or August 2010 injuries, the only
pieces of evidence he has provided of inadequate medical treatment following either of the these incidents are: (1)
the medical record indicating that he was delayed in receiving a steroid injection in his hip in July 2009 because the
BOP had not paid its medical bills; and (2) several “sick call slips” from 2009 in which he reported severe pain and
requested more medication. While a delay in necessary treatment could conceivably constitute a breach of the
standard of care, Molina has not provided evidence that the delay in July 2009 was lengthy, or that it was a cause of
the injury for which he seeks damages. The “sick call slips” also fall short of raising a triable issue of fact,
particularly in light of Molina’s acknowledgement that, at another time, he was denied pain medication because he
“used it a lot and they didn’t want to give me anymore until the doctor would authorize it.” Molina Dep. 52:6–9.

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Although Molina did not specify how defendant “fail[ed] to properly address his health
care,” see Am. Compl. ¶ 16, affording him the “special solicitude” appropriate for a pro se
prisoner, see Graham v. Lewinski, 848 F.2d at 344, I conclude that the record contains evidence
of two possible breaches: First, the denial of an air pump for the air cast Molina was provided
for his fractured right ankle. See BOP Rec. 253 (noting that “[p]ump for cast was lost”).
Second, the apparent delay in providing Molina with either crutches or a wheelchair. See id. at
258 (medical record dated seven days after the fall and six days after Molina was found to have
fractured his ankle, in which a physician assistant noted that he would “find patient [a] pair of
crutches”). This conclusion is consistent with Molina’s assertion that defendant failed to provide
“equipment he needed for treatment for his complaints and maladies.” Am. Compl. ¶ 16.
Both of these matters potentially fit “within the ordinary experience and knowledge of
laymen,” for which—even if I were to construe Molina’s claim as one of medical malpractice—
expert testimony is not required. See Milano by Milano, 64 F.3d at 95. Indeed, at first read, it
would seem self-evident that the denial of the very equipment prescribed as treatment for
Molina’s injury is a breach of defendant’s duty of reasonable care. Nevertheless, significant
questions remain. How frequently must an air cast be pumped in order to remain effective, and
for how long was Molina without a pump? Did Molina still have a cane during the period when
he was without either crutches or a wheelchair, and does a cane constitute an adequate temporary
substitute for crutches or a wheelchair for a patient with injuries such as his? Was Molina
allowed to remain in bed on the days when he had neither crutches nor a wheelchair, or was he
forced to leave his cell (for example, for meals)? Without the benefit of any evidence, expert or
otherwise, as to these matters, it is unclear that a reasonable jury could find in Molina’s favor.

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In any event, I need not decide whether Molina established a genuine issue of material
fact on the question of breach, because his claim suffers from another, unequivocal defect: he has
not provided any evidence that the denial of the air pump or the delayed provision of crutches or
a wheelchair was the proximate cause of the allegedly “severe and permanent injuries to various
parts of his body including his ankle, spine, head, [and] finger.” Am. Compl. ¶ 17. Molina has
not shown a connection between the two potential breaches, both of which relate to treatment for
his right ankle fracture, and his (apparent) spine, head, and finger injuries. Instead, he “merely
relies upon his own conclusion” that he was injured as a result of defendants’ action or inaction,
which is insufficient to survive summary judgment. Ford v. Spears, No. 10 CV 1314 RJD LB,
2012 WL 4481739, at *13 (E.D.N.Y. Sept. 27, 2012) (citation omitted). While his ankle injuries
could plausibly have been exacerbated by the denial of a functioning air cast and crutches or a
wheelchair, those injuries long predate his May 2010 fall and subsequent medical treatment. The
Second Circuit’s warning of the “ever present possibility that it was the patient’s original
affliction rather than the physician’s negligence which caused the ultimate damage,” thus weighs
heavily here. Sitts, 811 F.2d at 740. The extent of such “ultimate damage” is also unclear;
notably, an x-ray taken of Molina’s ankle in January 2011 came back negative for fractures. In
sum, without any evidence, expert or otherwise, that defendant’s actions proximately caused his
injuries, Molina cannot withstand defendant’s motion for summary judgment.
CONCLUSION
Defendant’s motion for summary judgment is granted.
summary judgment is denied.

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Molina’s cross-motion for