Fortunato v. Lee et al

Filing 94

OPINION AND ORDER re: 80 MOTION for Summary Judgment filed by Bhople. For the reasons outlined herein, Defendant's motion for summary judgment is GRANTED. The Clerk of Court is directed to terminate all pending motion s, adjourn all remaining dates, and close this case. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith; therefore, in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Katherine Polk Failla on 7/24/2017) Copies Mailed By Chambers. (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
LOUIS FORTUNATO,
:
:
:
Plaintiff,
:
v.
:
:
DR. BHOPALE,
:
:
Defendant. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
July 24, 2017
DATE FILED: ______________

12 Civ. 1630 (KPF)
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:
Plaintiff Louis Fortunato 1 brought this action pursuant to 42 U.S.C.
§ 1983, alleging that Defendant Dr. Vishwas Bhopale 2 was deliberately
indifferent to Plaintiff’s serious medical needs in violation of the Eighth
Amendment. In particular, Plaintiff alleges that but for Defendant’s
substandard medical treatment, Plaintiff’s glaucoma would not have
progressed as it did, to the point where Plaintiff’s vision is now compromised.
Defendant has moved for summary judgment, contending alternatively that
(i) there is no genuine dispute of material fact and he is entitled to judgment as

1

Plaintiff has brought this lawsuit using the first name “Louis.” Defendant has informed
the Court that Plaintiff’s New York State Department of Corrections and Community
Supervision (“DOCCS”) records uniformly refer to Plaintiff as “Lewis.” (Dkt. #82, at 1
n.1). The Court notes the disagreement but need not resolve it. There is no dispute
that Plaintiff is the individual to whom the DOCCS records pertain. In this Opinion, the
Court will refer to Plaintiff simply as “Plaintiff.”

2

The surname of Defendant Bhopale was misspelled as “Bhople” in Plaintiff’s Amended
Complaint (the “AC” (Dkt. #12)). The Clerk of Court is directed to amend the caption as
indicated above.

a matter of law, and (ii) he is entitled to qualified immunity. For the reasons
that follow, Defendant’s motion is granted.
BACKGROUND 3
A.

Factual Background
1.

The Parties

At all times relevant to this case, Plaintiff was an inmate incarcerated in
the DOCCS system. (Def. 56.1 ¶ 1). Plaintiff was housed at Green Haven
3

For convenience, the Court will refer to Defendant’s memorandum of law in support of
his motion for summary judgment as “Def. Br.” (Dkt. #82), Plaintiff’s letter in opposition
to Defendant’s motion as “Pl. Opp.” (Dkt. #89), and Defendant’s reply memorandum of
law in further support of his motion as “Def. Reply” (Dkt. #90). The letter Defendant
construes as Plaintiff’s sur-reply will be referred to as “Pl. Sur-Reply” (Dkt. #91).
Defendant’s letter opposing this sur-reply will be referred to as “Def. Opp.” (Dkt. #92).
The facts in this Opinion are drawn from the parties’ submissions in connection with
Defendant’s motion for summary judgment, including Defendant’s Local Rule 56.1
Statement (“Def. 56.1” (Dkt. #83)); the declarations of Dr. Vishwas Bhopale (“Bhopale
Decl.” (Dkt. #84)), Dr. Charles Rheeman (“Rheeman Decl.” (Dkt. #85)), Defendant’s
counsel Jeb Harben (“Harben Decl.” (Dkt. #86)), and Dr. Thaddeus Wandel (“Wandel
Decl.” (Dkt. #87)); and the exhibits attached to these declarations. The exhibits will be
referred to by their letter designation: “Bhopale Decl., Ex. [ ],” for example.
Citations to a party’s Local Rule 56.1 Statement incorporate by reference the
documents cited therein. Generally, where facts stated in a party’s Local Rule 56.1
Statement are supported by testimonial or documentary evidence, and denied with only
a conclusory statement by the other party, the Court finds such facts to be true. See
Local Rule 56.1(c), (d); Biberaj v. Pritchard Indus., Inc., 859 F. Supp. 2d 549, 553 n.3
(S.D.N.Y. 2012) (“A nonmoving party’s failure to respond to a Rule 56.1 statement
permits the court to conclude that the facts asserted in the statement are uncontested
and admissible.” (internal quotation mark omitted) (quoting T.Y. v. N.Y.C. Dep’t of Educ.,
584 F.3d 412, 418 (2d Cir. 2009))).
In this case, Plaintiff did not oppose Defendant’s Rule 56.1 Statement despite being
provided with the appropriate “Notice to Pro Se Litigant” under Local Civil Rule 56.2.
(See Dkt. #81). But “[w]hile pro se litigants are ‘not excused from meeting the
requirements of Local Rule 56.1,’ the Court nonetheless ‘retains some discretion to
consider the substance of the [pro se party’s] arguments, where actually supported by
evidentiary submissions.’” Betts v. Rodriquez, No. 15 Civ. 3836 (JPO), 2017 WL
2124443, at *1 n.1 (S.D.N.Y. May 15, 2017) (quoting Wali v. One Source Co., 678 F.
Supp. 2d 170, 178 (S.D.N.Y. 2009)) (citing Holtz v. Rockefeller & Co., 258 F.3d 62, 73
(2d Cir. 2001) (“A district court has broad discretion to determine whether to overlook a
party’s failure to comply with local court rules” and may “opt to conduct an assiduous
review of the record even where one of the parties has failed to file such a statement.)).
Here, Plaintiff’s opposition letters neither directly respond to Defendant’s 56.1
statement nor contain factual allegations supported by citations to evidence. (Dkt. #89,
91). However, because Plaintiff is proceeding pro se, “this Court has conducted an

2

Correctional Facility (“Green Haven”) from approximately January 2007
through May 2011, at which time he was transferred to Southport Correctional
Facility (“Southport”). (Id. at ¶ 2).
Defendant was employed by DOCCS as a physician at Green Haven from
April 2005 through his retirement in February 2016. (Def. 56.1 ¶ 3).
Defendant “did not have specialized training in ophthalmology or optometry.”
(Id. at ¶ 4 (citing Bhopale Decl. ¶¶ 16-17)).
2.

Plaintiff’s Medical History at Green Haven

Plaintiff first complained of vision problems to Green Haven’s medical
staff on or around December 6, 2007. (Def. 56.1 ¶ 5). He was evaluated in the
Putnam Hospital Center Emergency Room on December 10, 2007, and found to
have an elevated intraocular pressure (“IOP”) of 23 in his right eye. (Id. at ¶¶ 56). 4 It was recommended that Plaintiff follow up with an ophthalmologist, and
an ophthalmological consultation was requested by Plaintiff’s primary medical
care provider at the time, Green Haven Physician Assistant Novoa (“PA Novoa”).
assiduous review of the record to determine if there is any evidentiary support for his
assertions of fact that do not cite to evidence and to determine if there are any other
material issues of fact.” Betts, 2017 WL 2124443, at *1 n.1 (quoting Geldzahler v. N.Y.
Med. Coll., 746 F. Supp. 2d 618, 620 n.1 (S.D.N.Y. 2010)); see also, e.g., Anderson v.
City of New Rochelle, No. 10 Civ. 4941 (ER), 2012 WL 3957742, at *7 (S.D.N.Y. Sept. 4,
2012). The Court will consider the transcript of Plaintiff’s deposition (“Pl. Dep. Tr.”
(Dkt. #86-1)), Plaintiff’s Complaint (Dkt. #2), and the Amended Complaint (Dkt. #12), as
if they had been presented in opposition to Defendant’s motion. See, e.g., Patterson v.
Cty. of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004) (“[A] verified pleading, to the
extent that it makes allegations on the basis of the plaintiff’s personal knowledge, and
not merely on information and belief, has the effect of an affidavit and may be relied on
to oppose summary judgment.”); Laster v. Mancini, No. 07 Civ. 8265 (DAB) (MHD), 2013
WL 5405468, at *23 (S.D.N.Y. Sept. 25, 2013) (using plaintiff’s deposition, incorporated
as part of the record by defendants, to determine if there were any factual disputes).
4

The Court understands that a normal IOP measurement is within the range of 10-21
(Def. 56.1 ¶ 12), though a measurement of IOP up to at least 25 “would not result in
pain or discomfort” (id. at ¶ 27; see also Rheeman Decl. ¶¶ 18-19).

3

(Id. at ¶ 9). On December 19, 2007, Plaintiff was examined by an
ophthalmological specialist and found to have a normal IOP of 19 in both eyes
and normal visual acuity. (Id. at ¶¶ 9-10).
Two months later, on February 25, 2008, Plaintiff was again seen by a
specialist upon the referral of PA Novoa. (Def. 56.1 ¶ 13). Plaintiff had been
evaluated at Green Haven after complaining of blurry vision, and was found to
have 20/70 vision in his right eye and 20/40 in his left eye. (Id.). However, the
specialist found that Plaintiff had normal visual acuity in both eyes. (Id. at
¶ 14). Plaintiff’s IOP was 21 in his right eye and 22 in his left. (Id. at ¶ 15).
Accordingly, the specialist recommended a visual field test. (Id. at ¶ 16).
“Following a referral by Green Haven Physician Assistant Rodas, an Octopus
Visual Field Test was performed on March 19, 2008, which showed normal
results in both eyes.” (Id. at ¶ 18).
Sometime within the subsequent year, Defendant was assigned to serve
as Plaintiff’s primary medical care provider. (Def. 56.1 ¶ 19). When Plaintiff
complained of blurry vision, Defendant referred Plaintiff to a specialist on
April 9, 2009. (Def. 56.1 ¶ 19 (citing Rheeman Decl. ¶ 14, Ex. F); Bhopale Decl.
¶ 14). “Plaintiff was seen by the specialist on May 11, 2009, and his IOP was
found to be slightly elevated at 22 in the right eye and 24 in the left eye, and
his vision was measured as normal, 20/25, in both eyes.” (Id. at ¶ 20). “[T]he
specialist recommended another visual field test.” (Id. at ¶ 21). Defendant
issued an additional referral, and an additional Octopus Visual Field Test was
performed on June 4, 2009[.]” (Id. at ¶ 23). The test results were normal as to
4

both of Plaintiff’s eyes. (Id.). Accordingly, “[n]o course of treatment or followup testing was recommended by the specialist who conducted the June 4, 2009
visual field test.” (Id. at ¶ 24). 5
Plaintiff’s next consultation with a specialist took place on January 19,
2010, upon an additional referral from Defendant. (Def. 56.1 ¶ 26). The
specialist found that Plaintiff’s IOP was 25 in his right eye and 24 in his left.
(Id.). Plaintiff’s visual acuity was normal, measuring at 20/25 in both eyes.
(Id. at ¶ 28). “The specialist recommended another visual field test, which,
after a referral by [Defendant], was performed on February 12, 2010.” (Id. at
¶ 29). “The Octopus Visual Field Test showed claimed nonspecific scattered
scotoma (small isolated areas of claimed vision loss) in [the] superior visual
field in the right eye and a claimed superior arcuate (top of the eye) visual field
defect in the left eye.” (Rheeman Decl. ¶ 20 (citing id. at Ex. I)). 6
Therefore, Defendant referred Plaintiff for a follow-up appointment with a
specialist, which appointment occurred on February 22, 2010. (Def. 56.1
¶ 30). Plaintiff’s IOP was measured to be 23 in his right eye and 22 in his left.
(Id. at ¶ 31). Plaintiff had normal visual acuity of 20/25 in both eyes. (Id. at

5

The Court understands that “[s]pecialists who treat DOCCS inmates normally convey
recommendations for treatment or additional testing to the inmate’s primary care
providers ... in writing in the materials returned to the provider and DOCCS.” (Def.
56.1 ¶ 25 (citing Bhopale Decl. ¶¶ 12, 16-18)).

6

Defendant takes pains to note that a “visual field test is subjective and its results may
be impacted by a patient who does not give accurate responses and the test itself
cannot rule out malingering.” (Def. 56.1 ¶ 22 (citing Rheeman Decl. ¶ 15)).

5

¶ 32). Following this appointment, Plaintiff was prescribed Lumigan eye drops 7
to treat his elevated IOP and referred to a glaucoma specialist. 8 (Id. at ¶ 33).
Additionally, upon Defendant’s referral, “an MRI of Plaintiff’s brain was taken”
on February 23, 2010, “which showed normal results.” (Id. at ¶ 36).
On March 19, 2010, Plaintiff was examined by glaucoma specialist Dr.
Wandel, again upon a referral from Defendant. (Def. 56.1 ¶ 37). Plaintiff’s IOP
was 15 in his right eye and 20 in his left. (Id. at ¶ 38). His vision was normal,
20/20 and 20/30 in each of Plaintiff’s eyes. (Id. at ¶ 39).
“Following a referral by [Defendant], Dr. Wandel ordered a Humphrey
Visual Field Test and a Heidelberg Retina Tomograph (‘HRT’), which was
conducted on May 4, 2010, and was normal except [for] a subtle superior eyelid
defect in both eyes, a condition that is not a symptom of glaucoma.” (Def. 56.1
¶ 40). A “superior visual field defect in both eyes” detected on February 22,
2010, “appeared to have resolved.” (Id. at ¶ 41). “Plaintiff also had OCT
(Optical Coherence Tomography) of NFL (Nerve Fiber Layer) ... , which showed
normal results.” (Id. at ¶ 42 (citing Rheeman Decl. ¶ 27, Ex. M; Wandel Decl.
¶ 7)). 9
7

“Lumigan is often provided to glaucoma patients, but can also be provided to patients
just suffering from elevated IOP.” (Def. 56.1 ¶ 35 (citing Rheeman Decl. ¶ 22; Wandel
Decl. ¶¶ 6-8)).

8

The Court understands that “[e]levated IOP is one potential symptom of and/or a
precursor to glaucoma.” (Def. 56.1 ¶ 34 (citing Rheeman Decl. ¶ 22; Wandel Decl. ¶ 8)).
Elevated IOP is not enough on its own, however. “[O]ther criteria must be present for
there to be a diagnosis of glaucoma” (id.), such as “progressive cupping [of a patient’s
optic nerves], [or] progressive thinning of nerve fiber layer” (id. at ¶ 75 (citing Rheeman
Decl. ¶ 45)). As detailed in the remainder of this Opinion, the record is bereft of
evidence of these other criteria.

9

An “OCT measures the thickness of nerve fiber layer around the optic nerve.” (Def. 56.1
¶ 43 (citing Rheeman Decl. ¶ 27, Ex. M)). “[A]dvancing glaucoma would show

6

“Following referrals by [Defendant], Plaintiff was seen again by Dr.
Wandel on November 12, 2010, and February 25, 2011.” (Def. 56.1 ¶ 45).
“Plaintiff was found to have normal IOP on November 12, 2010, and
February 25, 2011, while being treated with Lumigan.” (Id. at ¶ 46). “Plaintiff’s
vision was normal, measur[ing] at 20/25 in both eyes on November 12, 2010,
and February 25, 2011.” (Def. 56.1 ¶ 47). Moreover, “Plaintiff’s optic nerves
continued to be normal in appearance without cupping, which indicated that
Plaintiff was not suffering from glaucoma.” (Id. at ¶ 48 (citing Rheeman Decl.
¶ 28, Ex. N; Wandel Decl. ¶¶ 6-7)).
3.

Plaintiff’s Medical History After His Transfer from
Green Haven

In May 2011, Plaintiff was transferred from Green Haven to Southport,
and Defendant’s responsibilities for Plaintiff’s medical care ceased. (Def. 56.1
¶¶ 49-50). However, Plaintiff continued to receive care from DOCCS.
On June 7, 2011, pursuant to a referral from Plaintiff’s “medical
providers at Southport, Plaintiff was seen by a new ophthalmological
specialist.” (Def. 56.1 ¶ 49). Plaintiff’s IOP was 17 in his right eye and 21 in
the left. (Id. at ¶ 51). On July 6, 2011, pursuant to an additional referral,
“Plaintiff was seen by an optometrist ... and Plaintiff’s vision was corrected, by

progressive cupping, as well as progressive thinning of nerve fiber layer on OCT[.]” (Id.
at ¶ 75 (citing Rheeman Decl. ¶ 45)). The benefit of an OCT is that unlike a “visual field
test, which is effort dependent on the subject, [an] OCT is completely objective [and] ...
will typically show abnormality even before visual field defect occurs in glaucoma.” (Id.
at ¶ 44 (citing Rheeman Decl. ¶ 27, Ex. M)).

7

glasses, to 20/20 in both eyes, with mild correction for myopia/near
sightedness.” (Id. at ¶ 52).
Plaintiff was next seen by a specialist on June 25, 2012, at which time
his IOP was normal, measuring at 12 in his right eye and 14 in his left. (Def.
56.1 ¶¶ 53-54). Plaintiff was seen by a specialist again on September 25, 2012,
and his IOP was still normal, measuring at 18 in his right eye and 14 in his
left. (Id. at ¶ 55).
On July 3, 2013, an optometrist found that Plaintiff’s visual acuity was
20/50 in both eyes. (Def. 56.1 ¶ 57). Plaintiff was given glasses, which
improved his vision to 20/30. (Id.).
Plaintiff was next seen by a specialist on May 8, 2015. (Def. 56.1 ¶ 59).
At that time, Plaintiff’s optic nerves were examined and found to still be
“normal in appearance with an estimated cup of 0.2 in both eyes.” (Id.).
Plaintiff was seen by a glaucoma specialist on January 27, 2016, and his
IOP was normal, measuring 17 in both eyes. (Def. 56.1 ¶¶ 60-61). An
additional Humphrey Visual Field Test was conducted, which test “showed
high false negatives (35% in the right and 21% in the left eye) and showed
dense superior and temporal visual field defect in both eyes. An OCT of NFL
came back normal in the right eye and significant nerve fiber layer thinning in
the left eye.” (Id. at ¶ 62). This abnormality was the result of “the scan being
off centered and was thus not accurate.” (Id. at ¶ 63). However, in light of the
“dense superior and bitemporal visual field defect seen, which is very atypical

8

of glaucoma, the glaucoma specialist recommended referring Plaintiff to a
neuroophthalmologist.” (Id. at ¶ 63).
Accordingly, Plaintiff was referred to and seen by Dr. Charles Rheeman
on February 24, 2016. (Def. 56.1 ¶ 64; see also Rheeman Decl. ¶ 42, Ex. BB).
Without his glasses, Plaintiff’s visual acuity was 20/50 in his right eye and
20/80 in his left. (Id. at ¶ 65). “Plaintiff’s pupillary exam was normal without
afferent pupillary defect[,] and ... Plaintiff’s IOP was normal at 19 in the right
and 18 in the left eye.” (Id. at ¶¶ 66-67). “An OCT of NFL came back normal in
both eyes.” (Id. at ¶ 70). “[An] HVF test showed moderate to severely
constricted visual field defect in both eyes, which was different than [the]
complete superior and temporal visual field defect in both eyes seen on
January 27, 2016.” (Id. at ¶ 69). But overall, “Plaintiff’s entire eye exam was
normal, including normal appearing optic nerves with normal cup of 0.2 in
both eyes.” (Id. at ¶ 68 (citing Rheeman Decl. ¶ 42, Ex. BB)). Indeed,
“Plaintiff’s cup/disc ratio of his optic nerve was 0.2 on February 24, 2016,
which was the same as it was when measured in 2008.” (Id. at ¶ 74 (citing
Rheeman Decl. ¶ 45)).
B.

Procedural Background 10
The operative pleading in this action, Plaintiff’s Amended Complaint,

was filed on May 17, 2012. (Dkt. #12). The then-Defendants moved to dismiss
the Amended Complaint on May 20, 2015. (Dkt. #44-46).

10

Judge Analisa Torres, to whom this case was previously assigned, recounted in detail
the procedural history of this case in her Memorandum and Order issued September 1,
2015, which granted then-Defendants Bernstein’s and Zabin’s motions to dismiss and

9

On September 1, 2015, Judge Analisa Torres issued the September 1
Memorandum and Order (the “September 1 Memorandum”) dismissing
Plaintiff’s claims against all Defendants but for Defendant Bhopale. Fortunato
v. Bernstein, No. 12 Civ. 1630 (AT), 2015 WL 5813376 (S.D.N.Y. Sept. 1, 2015).
(Dkt. #50). On September 10, 2015, Defendant Bhopale and former-Defendant
Bernstein filed a motion for reconsideration of certain arguments they had
made under Federal Rule of Civil Procedure 12(b)(2). (Dkt. #51-52). After
resolving various service-related issues (Dkt. #55-62), the Court granted the
reconsideration motion on February 22, 2016. (Dkt. #63). “However, upon
reconsideration, the Court adhere[d] to its prior decision,” pursuant to its
discretion under Federal Rule of Civil Procedure 4(m). (Id.). Defendant
Bhopale, the only remaining Defendant, filed his Answer to the Amended
Complaint on April 14, 2016, in which he raised several affirmative defenses,
including the defense of qualified immunity. (Dkt. #68).
On October 6, 2016, at Defendant’s request (Dkt. #76), Judge Torres set
a schedule for the briefing of Defendant’s contemplated motion for summary

denied Bhopale’s motion to dismiss. See Fortunato v. Bernstein, No. 12 Civ. 1630 (AT),
2015 WL 5813376, at *1-2 (S.D.N.Y. Sept. 1, 2015) (the “September 1 Memorandum”
(Dkt. #50)). The Court incorporates that recitation by reference, and will focus its
attention on the events that followed the issuance of the September 1 Memorandum.
However, before the Court does so, the Court pauses to resolve an outstanding issue.
In the September 1 Memorandum, Judge Torres dismissed then-Defendants Bernstein
and Zabin without prejudice and offered Plaintiff leave to amend his claims against
them. See Fortunato, 2015 WL 5813376, at *5-7. Plaintiff was reminded to amend, and
given additional time to do so, both in a subsequent order resolving Bhopale’s and
Bernstein’s motion for reconsideration (Dkt. #63), and in an order issued on April 12,
2016 (Dkt. #67). Plaintiff never filed an additional amended pleading. Accordingly, the
Court hereby orders that Plaintiff’s claims against Defendants Bernstein and Zabin are
dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b), as Judge
Torres repeatedly warned Plaintiff they would be.

10

judgment. (Dkt. #77). After the schedule was extended on November 9, 2016
(Dkt. #79), Defendant filed his motion on November 22, 2016 (Dkt. #80-88).
Plaintiff filed a letter in opposition to Defendant’s motion dated November 27,
2016 (Dkt. #89), and Defendant filed his reply in further support of his motion
on January 11, 2017 (Dkt. #90). Plaintiff filed a second letter dated
January 24, 2017 (Dkt. #91); Defendant construed this submission as a surreply and opposed it by letter dated February 15, 2017 (Dkt. #92).
On February 21, 2017, the case was transferred to the undersigned.
(Docket Entry dated February 21, 2017).
DISCUSSION
A.

Applicable Law
1.

Rule 56 Motions for Summary Judgment

Rule 56(a) provides that a “court shall grant summary judgment 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). Thus,
“[a] motion for summary judgment may properly be granted ... only where there
is no genuine issue of material fact to be tried, and the facts as to which there
is no such issue warrant the entry of judgment for the moving party as a
matter of law.” Rogoz v. City of Hartford, 796 F.3d 236, 245 (2d Cir. 2015)
(internal quotation marks omitted) (quoting Kaytor v. Elec. Boat Corp., 609 F.3d
537, 545 (2d Cir. 2010)).
“The function of the district court in considering [a] motion for summary
judgment is not to resolve disputed questions of fact but only to determine
11

whether, as to any material issue, a genuine factual dispute exists.” Rogoz,
796 F.3d at 245 (quoting Kaytor, 609 F.3d at 545). And “‘[i]n determining
whether summary judgment is appropriate,’ a court must ‘construe the facts in
the light most favorable to the non-moving party and ... resolve all ambiguities
and draw all reasonable inferences against the movant.’” Kuhbier v.
McCartney, Verrino & Rosenberry Vested Producer Plan, –– F. Supp. 3d ––,
No. 14 Civ. 888 (KMK), 2017 WL 933126, at *7 (S.D.N.Y. Mar. 8, 2017)
(omission in original) (quoting Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.
2011)).
A party moving for summary judgment “bears the initial burden of
demonstrating ‘the absence of a genuine issue of material fact.’” ICC Chem.
Corp. v. Nordic Tankers Trading a/s, 186 F. Supp. 3d 296, 301 (S.D.N.Y. 2016)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “[A] fact is material
if it ‘might affect the outcome of the suit under the governing law.’” Royal
Crown Day Care LLC v. Dep’t of Health & Mental Hygiene of City of N.Y., 746
F.3d 538, 544 (2d Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). And “[a] dispute is ‘genuine’ if ‘the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Negrete v.
Citibank, N.A., –– F. Supp. 3d ––, No. 15 Civ. 7250 (RWS), 2017 WL 758516, at
*6 (S.D.N.Y. Feb. 27, 2017) (quoting Liberty Lobby, 477 U.S. at 248).
The Second Circuit has further clarified that
Where, as here, the nonmovant bears the burden of
proof at trial, the movant may show prima facie
entitlement to summary judgment in one of two
12

ways: [i] the movant may point to evidence that negates
[his] opponent’s claims or [ii] the movant may identify
those portions of [his] opponent’s evidence that
demonstrate the absence of a genuine issue of material
fact, a tactic that requires identifying evidentiary
insufficiency and not simply denying the opponent’s
pleadings.
Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006) (citing Celotex, 477
U.S. at 323; Farid v. Smith, 850 F.2d 917, 924 (2d Cir. 1988)). “If the movant
makes this showing in either manner, the burden shifts to the nonmovant to
point to record evidence creating a genuine issue of material fact.” Id. at 273
(citing Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986)). Neither the movant nor the nonmovant may rest on
allegations in the pleadings; each party must point to specific evidence in the
record to carry its burden on summary judgment. Celotex, 477 U.S. at 324;
Matsushita, 475 U.S. at 586. 11
2.

Section 1983 Claims of Inadequate Medical Care

Section 1983 provides a remedy when a state actor deprives a plaintiff of
federally protected rights. See 42 U.S.C. § 1983. An actionable § 1983 claim
requires the plaintiff to show (i) a violation of a right, privilege, or immunity

11

The Court is mindful of Plaintiff’s pro se status, and the “special solicitude” to which it
entitles him. See Tracy v. Freshwater, 623 F.3d 90, 100-04 (2d Cir. 2010); see also
McLeod v. Jewish Guild for the Blind, No. 15-2898-cv, 2017 WL –––, (2d Cir. July 19,
2017 (per curiam) (affirming “well-worn precedent concerning a district court’s
obligation to liberally construe pro se submissions”). The Court notes however, that
“[s]uch special solicitude is not unlimited.” Blalock v. Jacobsen, No. 13 Civ. 8332
(JMF), 2016 WL 796842, at *2 (S.D.N.Y. Feb. 22, 2016). “Provided the moving party has
met its initial burden of demonstrating the absence of a genuine issue of material fact, a
pro se party opposing summary judgment must still ‘come forward with evidence
demonstrating that there is a genuine dispute regarding material fact.’” Id. (quoting
Bennett v. Bailey, No. 07 Civ. 7002 (PKC), 2010 WL 1459192, at *3 (S.D.N.Y. Apr. 9,
2010)).

13

protected by the Constitution or laws of the United States, and (ii) that an actor
committed that violation under the color of state law. See Cruz v. City of N.Y.,
No. 15 Civ. 2265 (PAE), 2017 WL 544588, at *7 (S.D.N.Y. Feb. 8, 2017) (citing
West v. Atkins, 487 U.S. 42, 48 (1988); Flagg Bros., Inc. v. Brooks, 436 U.S.
149, 155-56 (1978)); see also City of Oklahoma City v. Tuttle, 471 U.S. 808, 816
(1985) (“By its terms, of course, [Section 1983] creates no substantive rights; it
merely provides remedies for deprivations of rights established elsewhere.”).
“The Eighth Amendment forbids ‘deliberate indifference to serious
medical needs of prisoners[.]’” Spavone v. N.Y.S. State Dep’t of Corr. Servs., 719
F.3d 127, 138 (2d Cir. 2013) (quoting Estelle v. Gamble, 429 U.S. 97, 104
(1976)). To establish an Eighth Amendment “constitutional claim arising out of
inadequate medical care, an inmate must prove that prison or jail officials were
deliberately indifferent to his serious medical needs.” Gomez v. Cty. of
Westchester, 649 F. App’x 93, 95 (2d Cir. 2016) (summary order) (citing Smith
v. Carpenter, 316 F.3d 178, 183 (2d Cir. 2003)); accord Salahuddin, 467 F.3d at
279-80.
“A deliberate indifference claim contains two requirements. The first
requirement is objective: ‘the alleged deprivation of adequate medical care must
be sufficiently serious.’” Spavone, 719 F.3d at 138 (quoting Salahuddin, 467
F.3d at 279); see also Farmer v. Brennan, 511 U.S. 825, 834-40 (1994). To
show that a deprivation is sufficiently serious, a “plaintiff must plead that ‘a
condition of urgency, one that may produce death, degeneration, or extreme
pain’ exists.” Estevez v. City of N.Y., No. 16 Civ. 73 (JGK), 2017 WL 1167379,
14

at *5 (S.D.N.Y. Mar. 28, 2017) (quoting Hathaway v. Coughlin, 99 F.3d 550,
553 (2d Cir. 1996)); accord, e.g., Lewis v. Cavanugh, No. 15-3238-pr, –– F.
App’x ––, —, 2017 WL 1187455, at *1 (2d Cir. Mar. 30, 2017).
However, “[i]n cases where the inadequacy is in the medical treatment
given, the seriousness inquiry is narrower.” Salahuddin, 467 F.3d at 280.
Where, for example “the prisoner is receiving on-going treatment and the
offending conduct is an unreasonable delay ... in that treatment, the
seriousness inquiry ‘focuses on the challenged delay or interruption in
treatment rather than the prisoner’s underlying medical condition alone.’” Id.
(alteration omitted) (quoting Smith, 316 F.3d at 185); see also Smith, 316 F.3d
at 186 (“[It is] the particular risk of harm faced by a prisoner due to the
challenged deprivation of care, rather than the severity of the prisoner’s
underlying medical condition, considered in the abstract, that is relevant for
Eighth Amendment purposes.”).
“The second requirement is subjective: the charged officials must be
subjectively reckless in their denial of medical care.” Spavone, 719 F.3d at 138
(citing Salahuddin, 467 F.3d at 280). “This means ‘that the charged official
[must] act or fail to act while actually aware of a substantial risk that serious
inmate harm will result.’” Id. (alteration and emphasis in original) (quoting
Salahuddin, 467 F.3d at 280); see also Salahuddin, 467 F.3d at 280
(“Deliberate indifference is a mental state equivalent to subjective recklessness,
as the term is used in criminal law.”). “[R]ecklessness entails more than mere
negligence; the risk of harm must be substantial and the official’s actions more
15

than merely negligent.” Salahuddin, 467 F.3d at 280. But an “[o]fficial[] need
only be aware of the risk of harm, not intend harm,” and his or her “awareness
may be proven ‘from the very fact that the risk was obvious.’” Spavone, 719
F.3d at 138 (quoting Farmer, 511 U.S. at 842). Thus, in certain circumstances,
“even if objectively unreasonable, a defendant’s mental state may be
nonculpable.” Salahuddin, 467 F.3d at 281.
3.

Qualified Immunity

Defendant has also argued that his conduct is subject to qualified
immunity. “The doctrine of qualified immunity shields officials from civil
liability so long as their conduct ‘does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.’”
Mullenix v. Luna, — U.S. —, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting
Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Thus, “[w]hether qualified
immunity can be invoked turns on the ‘objective legal reasonableness’ of the
official’s acts.” Ziglar v. Abbasi, — U.S. —, 137 S. Ct. 1843, 1866 (2017)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)). “And reasonableness
of official action, in turn, must be ‘assessed in light of the legal rules that were
clearly established at the time [the action] was taken.’” Id. (quoting Anderson v.
Creighton, 483 U.S. 635, 639 (1987)).
“A clearly established right is one that is ‘sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right.’” Mullenix, 136 S. Ct. at 308 (quoting Reichle v. Howards, — U.S. —, 132
S. Ct. 2088, 2093 (2012)). Because the rights allegedly violated may appear
16

abstract, “[t]he dispositive question is whether the violative nature of particular
conduct is clearly established.” Ziglar, 137 S. Ct. at 1866 (emphasis in
original) (internal quotation marks omitted) (quoting Mullenix, 136 S. Ct. at
308). “It is not necessary, of course, that ‘the very action in question has
previously been held unlawful.’” Id. (quoting Anderson, 483 U.S. at 640). “But
‘in the light of pre-existing law,’ the unlawfulness of the officer’s conduct ‘must
be apparent.’” Id. at 1867 (quoting Anderson, 483 U.S. at 640). Thus, in effect,
“qualified immunity protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)).
“To determine whether a given [official] falls into either of those two
categories, a court must ask whether it would have been clear to a reasonable
[official] that the alleged conduct ‘was unlawful in the situation he confronted.’”
Ziglar, 137 S. Ct. at 1867 (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).
If the court answers that question in the affirmative,
then the defendant [official] must have been either
incompetent or else a knowing violator of the law, and
thus not entitled to qualified immunity.
If not,
however — i.e., if a reasonable [official] might not have
known for certain that the conduct was unlawful —
then the officer is immune from liability.
Id.
B.

Analysis
1.

The Parties’ Disputes

Plaintiff does not dispute the treatment timeline outlined above. Nor
does Plaintiff dispute the efficacy of his current treatment. (Pl. Dep. Tr. 50:1017

17 (“The eye drops is the best for right now. They’ve offered a lot of options but
I’d rather the eye drops.”)). Rather, Plaintiff disputes the speed with which he
was prescribed that treatment, and the consequences of Defendant’s purported
delay.
It is Plaintiff’s firm belief that he “ha[s] glaucoma,” because he has “been
told that [he] has glaucoma by many ophthalmologists.” (Pl. Dep. Tr. 33:11-13;
see also id. at 59:20-25 (“[P]ractically every ophthalmologist that I’ve been to
acknowledges that I have glaucoma. Some say it’s possibly something else, but
practically all of them say you do have glaucoma.”)). Plaintiff also believes that
his “eyesight is diminishing.” (Id. at 34:10-11; see also id. at 53:13-23). To the
extent Plaintiff’s DOCCS paperwork does not reflect the extent to which his
eyesight has diminished, Plaintiff indicates that that is because his DOCCS
medical providers “don’t want the paperwork to reflect that [his] eyesight is
diminishing at a rapid rate and it’s not in their convenience to admit it because
it’s deliberate indifference.” (Id. at 49:13-23; see also Pl. Opp. 3).
Plaintiff further believes that his glaucoma would not have progressed as
he contends it has, leaving Plaintiff’s vision compromised, if Plaintiff had been
given proper medical care by Defendant. (Pl. Dep. Tr. 42:14-20 (“[H]ad I been
diagnosed much sooner, had I knew that I had glaucoma much sooner I would
have been taking the eye drops, it would not be as bad as it is. ... I’m in the
middle stages of glaucoma. I could lose my eyesight at any time.”)). More
specifically, Plaintiff believes that if Defendant had sent Plaintiff “to a specialist
years before [Defendant] got [Plaintiff there[,] [i]f [Defendant] would have looked
18

at the test results[,] [Defendant] would have noticed that [Plaintiff] needed to
see a specialist[,] [t]hat [Plaintiff] had middle stages glaucoma[.] ... [Defendant]
would have noticed it at the beginning stages.” (Pl. Dep. Tr. 24:10-16; see also
Pl. Opp. 2 (“[Defendant] is the cause why [Plaintiff] didn’t get medical treatment
on time[.]”); Pl. Opp. 2-3 (“[H]ad [Plaintiff] been treated on time it wouldn’t be
this bad.”); Pl. Sur-Reply (same)). Because “[Defendant] didn’t know how to
read the actual test,” Plaintiff believes he was denied proper medical treatment.
(Pl. Dep. Tr. 24:17-18; see also id. at 25:8-9 (“[Plaintiff] could have got the
[Lumigan] eye drops much sooner.”)).
Plaintiff also complains that he was denied access to his medical testing.
Plaintiff indicates that
if [Plaintiff] wouldn’t complaint about the glaucoma[,]
[Defendant] would not call [Plaintiff] to tell the results.
There would be times where [Defendant] had the results
there for months. [Defendant] had it sitting in his office
for months and he wouldn’t even look at it to let
[Plaintiff] know what the results were. So unless
[Plaintiff] went and asked him for it he would not
confirm anything.
(Pl. Dep. Tr. 26:14-22). Plaintiff alleges that he was “putting down for sick call
as much as possible and [Defendant] was denying [Plaintiff] — he wasn’t giving
[Plaintiff] the medical treatment. [Defendant] felt like [Plaintiff] was harassing
him or bothering him too much in regards to the glaucoma situation.” (Id. at
27:10-15).
Defendant disputes Plaintiff’s contentions. Defendant claims that while
“Plaintiff has elevated IOP, controlled with Lumigan, [Plaintiff] does not have,
and has never had, glaucoma.” (Def. 56.1 ¶ 73 (citing Rheeman Decl. ¶¶ 4319

44; Wandel Decl. ¶¶ 5-8)). “Many people with above normal IOP never develop
glaucoma and do not necessarily have to be treated.” (Id. at ¶ 77 (citing
Rheeman Decl. ¶ 46)). And Defendant indicates that Plaintiff was such a
person. Thus, “[s]tarting Plaintiff on Lumigan in February 2010, rather than at
an earlier date, did not cause any long term visual deficit or injury to Plaintiff.”
(Id. at ¶ 76 (citing Rheeman Decl. ¶ 47)).
2.

Plaintiff Fails to State a § 1983 Claim for Deliberate
Indifference as a Matter of Law

Plaintiff has not shown that his claim satisfies both the objective and
subjective requirements of a deliberate indifference claim. The Court will
consider each requirement in turn.
The objective element requires Plaintiff to show that the deprivation of
his medical care was sufficiently serious. See Spavone, 719 F.3d at 138
(quoting Salahuddin, 467 F.3d at 279). Here, because Plaintiff claims that it
was treatment he was given (as opposed to treatment he was not given) that
was inadequate, “the seriousness inquiry is narrower.” Salahuddin, 467 F.3d
at 280. The Court’s “seriousness inquiry ‘focuses on the challenged delay or
interruption in treatment rather than the prisoner’s underlying medical
condition alone.’” Id. (alteration omitted) (quoting Smith, 316 F.3d at 185).
Plaintiff has not demonstrated that any delay occasioned by Defendant’s
treatment has caused death, degeneration, or extreme pain. Indeed, the
parties agree that Plaintiff’s elevated IOP has been successfully treated with
Lumigan. (Pl. Dep. Tr. 50:10-17; Rheeman Decl. ¶ 49). And Plaintiff’s DOCCS
records and the medical testimony provided by Defendant demonstrate that
20

Plaintiff’s visual acuity and IOP did not progressively decline following Plaintiff’s
treatment at Defendant’s hands. (See, e.g., Rheeman Decl. ¶¶ 46-49).
To the extent that the parties disagree about the reality of Plaintiff’s
declining visual acuity and glaucoma diagnosis, and about the accuracy of the
DOCCS documentation thereof, that dispute is not material and does not
preclude entry of summary judgment in Defendant’s favor. Even accepting
arguendo the truth of Plaintiff’s allegations regarding his eyesight and the
DOCCS records, Plaintiff’s deliberate indifference claim fails because Plaintiff
has not proven the second, subjective requirement of that claim. 12 To satisfy
this requirement, Plaintiff must show that Defendant failed to act while
actually aware of a substantial risk that serious harm would result from his
inaction. See Spavone, 719 F.3d at 138 (quoting Salahuddin, 467 F.3d at 280).
Plaintiff has not done so. The Court understands that Defendant did not
refer Plaintiff to a specialist as quickly as Plaintiff wished him to. But “[i]t is
well-established that mere disagreement over the proper treatment does not
create a constitutional claim. So long as the treatment given is adequate, the

12

The Court observes that Plaintiff has offered no evidence of his diagnosis or declining
vision but for his own self-serving, conclusory testimony and the hearsay testimony of
medical professionals, at least one of whom testifies that Plaintiff’s hearsay evidence is
false. (See Wandel Decl. ¶¶ 4-5 (“I have been informed that in the course of the above
litigation, [Plaintiff] has asserted that I told him that he had glaucoma and that if he
had been started on Lumigan eye drops earlier, his glaucoma would not be severe. This
is incorrect.”)). Therefore, the Court cannot find that Plaintiff has “point[ed] to specific
evidence in the record to carry [his] burden on summary judgment.” Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). The Court considers arguendo Plaintiff’s arguments in this
section, in an abundance of caution and in light of Plaintiff’s pro se status, to show that
they would fail as a matter of law even if Plaintiff could provide or had provided proper
evidence to support them. In point of fact, he has done neither.

21

fact that a prisoner might prefer a different treatment does not give rise to an
Eighth Amendment violation.” Benitez v. Parmer, 654 F. App’x 502, 504-05 (2d
Cir. 2016) (summary order) (internal quotation marks omitted) (quoting Chance
v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)).
The evidence here shows that Plaintiff received adequate treatment; there
is no indication that Defendant knew of and disregarded a substantial risk of
serious harm. The results of Plaintiff’s testing before he was assigned to
Defendant’s care gave Defendant no reason to be concerned that Plaintiff would
be seriously harmed from a seven-month gap in treatment. The specialist who
provided the June 4, 2009 visual field test “did not recommend a course of
treatment or follow-up diagnostic testing in connection with the results” of that
test. (Bhopale Decl. ¶ 18). Defendant himself was not trained in
ophthalmology or optometry, and therefore “relied on the designated specialist
to interpret the test results and recommend a course of treatment, if any, and
to recommend whether any additional testing was required.” (Id. at ¶ 17).
Because the specialist made no such recommendations, Defendant “did not
request any additional treatment or testing at that time.” (Id. at ¶ 18).
However, Defendant did refer Plaintiff for a follow-up with a specialist on
January 19, 2010, according to his usual practice of “hav[ing] follow-up testing
in six to twelve month intervals for patients who had complained ... of vision
issues.” (Id. at ¶ 19). When that specialist recommended Lumigan eye drops
to treat Plaintiff’s IOP, and recommended a referral to a glaucoma specialist,

22

Defendant promptly issued that referral and “began Plaintiff on that medication
immediately.” (Id. at ¶ 23; see also id. at ¶¶ 21-22 (citing id. at Ex. J)).
Defendant did not know of and disregard an actual risk to Plaintiff.
Defendant believed that there was no risk, because a specialist had indicated
that that was the case. This was adequate treatment. (See Rheeman Decl.
¶ 17 (“In my medical opinion, no treatment was required at that time, nor was
any immediate testing required. In my medical opinion, continued monitoring
of Plaintiff’s condition was the appropriate course of treatment at that time.”);
id. at ¶ 46). Even if, at worst, Defendant were negligent in not investigating
any additional complaints sooner than seven months after Plaintiff’s June 2009
evaluation, such negligence is not sufficient to support a deliberate indifference
claim. See Salahuddin, 467 F.3d at 280. Plaintiff’s claim fails as a matter of
law.
3.

Defendant Is Entitled to Qualified Immunity

Even if the Court were to find a genuine dispute of material fact
concerning Plaintiff’s deliberate indifference claim, it would still enter judgment
in Defendant’s favor because Defendant is entitled to qualified immunity.
Whenever the Court considers the appropriateness of this affirmative
defense, “[t]he dispositive question is whether the violative nature of particular
conduct is clearly established.” Ziglar, 137 S. Ct. at 1866 (alteration and
emphasis in original) (internal quotation marks omitted) (quoting Mullenix, 136
S. Ct. at 308). Thus, the Court must determine here “whether it would have
been clear to a reasonable [official] that [Defendant’s] alleged conduct ‘was
23

unlawful in the situation he confronted.’” Ziglar, 137 S. Ct. at 1867 (quoting
Saucier, 533 U.S. at 202).
The Court finds that it would not have been. The particular conduct that
Plaintiff alleges violated his rights under the Eighth Amendment was
Defendant’s delayed treatment of Plaintiff’s ocular maladies. The Court finds
as a matter of law that it would not have been clear to a reasonable official that
it was unlawful for Defendant to delay for a seven-month period in referring
Plaintiff for follow-up treatment in reliance on a specialist’s conclusion that no
additional treatment was warranted. The law in this Circuit supports a
reasonable official’s belief that a delay in treatment does not violate the Eighth
Amendment except in extreme cases, such as where, “for example, officials
deliberately delayed care as a form of punishment; ignored a life threatening
and fast degenerating condition for three days; or delayed major surgery for
over two years.” Freeman v. Stack, No. 99 Civ. 9878 (AJP), 2000 WL 1459782,
at *6 (S.D.N.Y. Sep. 29, 2000) (quoting Demata v. N.Y. State Corr. Dep’t of
Health Servs., 198 F.3d 233 (2d Cir. 1999) (table)). Moreover, Defendant has
introduced evidence supporting the reasonableness of his belief in the
appropriateness of his treatment for this particular Plaintiff. (See, e.g.,
Rheeman Decl. ¶ 46 (“I found no aspect of [Defendant’s] treatment and
monitoring of Plaintiff’s vision-related issues that deviated from the standard of
care.”)). Defendant is therefore entitled to qualified immunity.

24

CONCLUSION
For the reasons outlined above, Defendant’s motion for summary
judgment is GRANTED. The Clerk of Court is directed to terminate all pending
motions, adjourn all remaining dates, and close this case.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal
from this order would not be taken in good faith; therefore, in forma pauperis
status is denied for purposes of an appeal. See Coppedge v. United States, 369
U.S. 438, 444-45 (1962).
SO ORDERED.
Dated:

July 24, 2017
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

A copy of this Order was mailed by Chambers to:
Louis Fortunato
#04-A-4831
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562

25