Tavares v. N.Y.C. Belleview Hospital et al
Filing
131
MEMORANDUM AND ORDER granting 112 Motion for Summary Judgment. For the foregoing reasons, defendant Deutsch's motion for summary judgment (dkt. No. 112) is granted. The Clerk of Court is directed to enter judgment for defendant and close the case. Counsel for the defendants shall provide Blocker with copies of all unreported decisions cited herein, as further set forth in this order. So Ordered. (Signed by Judge P. Kevin Castel on 11/30/2015) (cf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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PEDRO TAVARES,
Plaintiff,
-against-
13 cv 3148 (PKC)(MHD)
MEMORANDUM
AND ORDER
N.Y.C. BELLEVIEW HOSPITAL, et al.,
Defendant.
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CASTEL, U.S.D.J.
Originally, plaintiff Pedro Tavares brought this action against the New York City
Health and Hospitals Corporation and several employees (the “City Defendants”), as well as
three employees of the New York State Department of Corrections and Community Supervision
(“DOCCS”) (the “DOCCS Defendants”). He alleged that, while incarcerated, he was provided
inadequate medical care, resulting in a hearing impairment, and that the defendants falsified
medical records in order to cover up the real cause of his impairment. The claims are brought
under 42 U.S.C. § 1983 and New York common law.
In this Court’s January 13, 2015 Memorandum and Order, the DOCCS
Defendants’ motion to dismiss was granted in its entirety, and City Defendants’ motion was also
granted, except as to one of the City Defendants, Michael Deutsch. The Court held that the
plaintiff had stated a claim for relief for deliberate indifference to his medical needs against
defendant Deutsch “insofar as it is premised on Deutsch’s failure to bandage or otherwise protect
Tavares’s wound following the carpal tunnel surgery.” Tavares v. New York City Health &
Hospitals Corp., No. 13 cv 3148 (PKC) (MHD), 2015 WL 158863, at *7 (S.D.N.Y. Jan. 13,
2015). With the record fully developed, defendant Deutsch now moves for summary judgment
pursuant to Rule 56, Fed. R. Civ. P. For the following reasons, defendant Deutsch’s motion for
summary judgment is granted.
LOCAL RULE 56.1 AND THE SUMMARY JUDGMENT RECORD
Defendant Deutsch submitted the notice required to a pro se party as to the
requirements for opposing a motion for summary judgment, and annexed the text of Rule 56 and
Local Civil Rule 56.1. (Dkt. No. 117.) Local Civil Rule 56.2. In opposition to defendant
Deutsch’s motion, Tavares submitted a memorandum of law, declarations in response to
defendant Deutsch’s and Omar Tuffaha’s declarations, as well as a declaration “in Response and
Opposition to Defendant Dr. Deutsch Motion for Summary Judgment.” (Dkt. Nos. 123-127.)
Tavares has not, however, submitted a statement in opposition to the defendant’s Local Civil
Rule 56.1 statement. Although “a court is not required to consider what the parties fail to point
out in their Local Rule 56.1 statements, it may in its discretion opt to conduct an assiduous
review of the record even where one of the parties has failed to file such a statement.” Holtz v.
Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (internal quotation marks omitted). In
light of Tavares’s pro se status, as well his numerous filings in response to defendant Deutsch’s
opening papers, the Court has reviewed and considered all materials submitted by Tavares. His
failure to submit a Local Rule 56.1 statement plays no role in the outcome of defendant’s motion.
BACKGROUND
On a motion for summary judgment, the Court views all evidence of record in the
light most favorable to Tavares as the non-moving party, and draws all reasonable inferences in
his favor. See generally Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011).
Plaintiff Pedro Tavares was first diagnosed with carpal tunnel syndrome in or
around the end of 2008 while imprisoned at George Motchan Detention Center. (Tuffaha
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Declaration, Ex. A, Tavares Dep. 29:14-18, 29:24-30:6.) Initially, prison doctors attempted to
resolve the issue with physical therapy. Over the course of six to eight months, Tavares attended
physical therapy sessions, where he was instructed to do various exercises to stretch the muscles
in his hand. (Id. 29:16-19, 30:6-14, 31:8-15.) Despite attending physical therapy once or twice a
week, however, Tavares’s hand continued to worsen until eventually, prison doctors decided to
perform carpel tunnel surgery. (Id. 29:19-21.)
On March 7, 2011, Tavares was transferred from the George R. Vierno Center at
Rikers Island (“GRVC”) to Bellevue Hospital (“Bellevue”) in preparation for his carpel tunnel
surgery scheduled for the following day. (Id. 37:21-22.) He was seen by several members of the
hospital staff over the course of the day, including his surgeons, who checked to ensure that
Tavares was ready for his surgery. (Id. 38:3-43-17.) In addition, Tavares received pre-operation
care, which included an I.V. to manage his diabetes. (Id. 44:2-22.) Hospital staff also “took
plaintiff’s vitals, reviewed his medications, noted his medical and surgical history, and assessed
his risk factors, including plaintiff’s history of hypertension and diabetes.” (Decl. of Dr. Michael
Deutsch ¶ 13.)
On March 8, 2011, Tavares underwent surgery for carpel tunnel syndrome on his
left hand. (Pl.’s Decl. in Resp. and Opp’n to Def. Dr. Deutsch Mot. for Summ. J. ¶ 3.) To
prevent infection, surgeons administered a prophylactic antibiotic, and the “incision was washed
out and cleansed with a sodium chloride irrigation solution to clean the wound and remove
debris.” (Decl. of Deutsch ¶ 18.) The wound was then sutured and covered in Dermabond,
which is “designed to prevent against surgical site infection in bonding the skin together to
prevent germs and water from entering.” (Pl.’s Decl. in Resp. and Opp’n to Def. Dr. Deutsch
Mot. for Summ. J. ¶ 4-5.)
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Following the surgery, Tavares spoke with the surgeons, who informed him that
the surgery was successful and that the numbness that he was experiencing was corrected.
(Tuffaha Declaration, Ex. A, Tavares Dep. 55:10-16.) From the post-surgery recovery room,
Tavares was taken back to his hospital room to recuperate further. (Id. 56:6-11.) Sometime
later, a correction officer came to Tavares’s room and told him to pack his things, and that he
was being discharged from the hospital. (Id. 56:12-15, 57:2-19.) 1 Correction officers in the
intake area told Tavares that he was being discharged because he had a court date the following
day (Id. 64:19-65:1); however, Tavares later learned that there was no such court date. (Id. 68:310.)
Tavares then went to the intake area of the hospital, where prisoners wait to be
transferred from Bellevue back to prison. Once there, Tavares informed the correction officers
that he would not leave until he saw a doctor. (Id. 57:16-19.) The officers initially refused
Tavares’s request and attempted to handcuff him; however, Tavares refused to be handcuffed
and requested to see a doctor again. (Id. 58:10-23.) The officers ultimately acquiesced and
sought a doctor to speak with Tavares. Ultimately, defendant Deutsch arrived to speak with
Tavares. (Id. 59:1-13.) Tavares asked defendant Deutsch why “the wound was uncovered when
[he] was going to be cuffed to a handcuff being used by other inmates.” (Id. 60:4-17.) He also
requested a “gasket” or bandage to protect his wound before being handcuffed. (Id. 61:8-13.)
Defendant Deutsch responded that the wound did not need to be covered, and that the surgery
was well performed and that the hand was protected. (Id. 60:16-17.) Tavares’s conversation
The parties continue to dispute the date of Tavares’s discharge. However, as will be discussed, the date is
immaterial to the disposition of the motion.
1
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with defendant Deutsch was very short, lasting only one or two minutes. (Tuffaha Declaration,
Ex. A, Tavares Dep. 64:4-7.) Tavares was subsequently handcuffed and transported back to
GRVC without additional protection for his wound. (Id. 60:18-61:4.)
On March 16, 2011, Tavares returned to Bellevue to treat a post-operation
infection that developed from his surgical wound. (Pl.’s Decl. in Resp. and Opp’n to Def. Dr.
Deutsch Mot. For Summ. J. ¶ 6.) The infection was treated with Vancomycin, an antibiotic, “for
4 days via intravenous IV.” (Id.) Vancomycin is an ototoxic antibiotic which could cause
“hearing loss, especially in the presence of renal insufficiency.” (Id., Ex. 19.) Approximately
one week after Tavares’s infection was contained, he began “to notice that he could not hear loud
noise in general.” (Id. ¶ 7.) A test conducted by an audiologist revealed that “Plaintiff had lost
his high tones hearing site.” (Id.) According to the audiologist, this hearing loss may be related
to ototoxicity from the use of IV antibiotics. (Id., Ex. 17.) Ultimately, Tavares’s hearing loss
will progress to total deafness. (Id. ¶ 8.)
LEGAL STANDARD
Summary judgment “shall” be granted “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.” Rule 56(a), Fed. R. Civ. P. A fact is material if it “might affect the outcome of the suit
under the governing law,” meaning that “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).
It is the initial burden of a movant on a summary judgment motion to come forward with
evidence on each material element of his claim or defense, demonstrating that he is entitled to
relief as a matter of law. Vt. Teddy Bear Co. v. 1–800 Beargram Co., 373 F.3d 241, 244 (2d Cir.
2004). In raising a triable issue of fact, the non-movant carries only “a limited burden of
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production,” but nevertheless “must ‘demonstrate more than some metaphysical doubt as to the
material facts,’ and come forward with ‘specific facts showing that there is a genuine issue for
trial.’” Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 84 (2d Cir. 2004) (quoting Aslanidis
v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)). In reviewing a motion for summary
judgment, the court may scrutinize the record, and grant or deny summary judgment as the
record warrants. Rule 56(c)(3), Fed. R. Civ. P. In the absence of any disputed material fact,
summary judgment is appropriate. Rule 56(a), Fed. R. Civ. P.
DISCUSSION
A. Evidentiary Issues
As an initial matter, Tavares contends that defendant Deutsch and others at
Bellevue have altered or fabricated medical records to make it appear that he was released on
March 9, 2011—a day after his surgery—rather than on March 8, 2011, a few hours after his
surgery. (Pl.’s Mem. of Law in Supp. Of Pl.’s Ans. to Dr. Deutsch’s Mot. for Summ. J. 9.)
Accordingly, Tavares requests that the Court order defendant Deutsch to produce several
documents, all relating to proving that he was in fact released on March 8, 2011. Specifically,
Tavares seeks surveillance videos and correction officers’ log books from GRVC. (Id.) In
addition, Tavares’s memorandum of law urges sanctions against defendant Deutsch for the
spoliation of the unproduced evidence. (Id. 22-23.)
The Court denies Tavares’s request for production of additional documents.
Tavares’s claim premised on the time of his discharge from Bellevue was already dismissed
based on Tavares’s failure to allege that it was “unreasonable to discharge a patient . . . a few
hours after the operation.” Tavares, 2015 WL 158863, at *6. In addition, Magistrate Judge
Dolinger has previously resolved this discovery dispute, and stated that “it appears that all
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responsive documents relevant to the one remaining claim in the case have been produced.”
(Dkt. No. 111.) At no time has plaintiff sought review of any order of Magistrate Judge
Dolinger. See Rule 72(a), Fed. R. Civ. P.
Tavares’s surviving claim, following this Court’s ruling on the motion to dismiss,
relates to defendant Deutsch’s failure to supply bandages for his surgical wound before
discharge, and the evidence sought by Tavares has no bearing on that claim. In addition, the
resolution of Tavares’s one remaining claim does not depend on the resolution of this timing
dispute, and therefore, it does not defeat defendant Deutsch’s summary judgment motion. See
Anderson, 477 U.S. at 247-48 (1986) (“By its very terms, this standard provides that the 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.”) (emphasis in original).
B. Eighth Amendment Claim
With respect to the merits of the surviving claim, the Court construes it as
alleging that defendant Deutsch was deliberately indifferent to Tavares’s need for medical
treatment in violation of the Eighth Amendment. The Eighth Amendment prohibits government
actors from inflicting “cruel and unusual punishments.” U.S. Const. amend. VIII. The
Amendment is applicable to the states through the Fourteenth Amendment, and is violated by
“unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312, 320 (1986).
While the Supreme Court has recognized a claim for inadequate medical care of a prisoner under
the Eighth Amendment, not every lapse in medical care amounts to a constitutional violation.
See Estelle v. Gamble, 429 U.S. 97, 105 (1976). A prisoner must demonstrate that medical staff
was deliberately indifferent to his serious medical needs. See id. at 104-105. Accordingly, a
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prisoner must not only show that the purported injury was an objectively serious medical
condition, but also that the prison officials involved exhibited deliberate indifference to the
prisoner’s serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 834 (1994).
To satisfy the objective element of the claim, a prisoner must show that (1) he was
actually deprived of adequate medical care, and (2) that the inadequacy is sufficiently serious.
Salahuddin v. Goord, 467 F.3d 263, 279-280 (2d Cir. 2006). With respect to proving an actual
deprivation, a prison official is only required to provide reasonable care, and therefore, “prison
officials who act reasonably [in response to an inmate-health risk] cannot be found liable under
the Cruel and Unusual Punishments Clause.” Id. (citing Farmer, 511 U.S. at 847). Conversely
“failing ‘to take reasonable measures’ in response to a medical condition can lead to liability.”
Id. at 280 (citing Farmer, 511 U.S. at 847). To show that the inadequacy was sufficiently
serious, the court must examine “how the offending conduct is inadequate and what harm, if any,
the inadequacy has caused or will likely cause the prisoner.” Id. Where the claim relates to a
complete failure to provide any treatment for an inmate’s medical condition, “courts examine
whether the inmate's medical condition is sufficiently serious.” Id. (citing Smith v. Carpenter,
316 F.3d 178, 185–86 (2d Cir.2003)). However, where the claim relates to the inadequacy of the
medical treatment, “the seriousness inquiry is narrower,” and the focus is on the
unreasonableness of the inadequacy. Id.
In addition to providing objectively inadequate medical care, the prison official
must have acted with the requisite subjective intent. To satisfy the subjective element of the
claim, a prisoner must demonstrate that the defendant “acted with deliberate indifference to
inmate health.” Id. “An official acts with the requisite deliberate indifference when that official
‘knows of and disregards an excessive risk to inmate health or safety; the official must both be
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aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.’” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.
1998) (quoting Farmer, 511 U.S. at 837). Claiming that a prison official acted negligently in
failing to provide adequate medical care does not create constitutional lability. Estelle, 429 U.S.
at 106 (“[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.”).
Rather, the prisoner must show the “failure to provide adequate medical care . . . constitute[d]
‘an unnecessary and wanton infliction of pain’ or to be ‘repugnant to the conscience of
mankind.’” Id. at 105-106.
Nor can an inmate’s disagreement with his treatment support a claim for cruel and
unusual punishment. Chance, 143 F.3d at 703 (2d Cir. 1998) (“It is well-established that mere
disagreement over the proper treatment does not create a constitutional claim.”). Disagreement
over treatment relates to an issue of medical judgment and at worst, amounts to medical
malpractice, not a constitutional violation. See Estelle, 429 U.S. at 106 (“Medical malpractice
does not become a constitutional violation merely because the victim is a prisoner.”). However,
“‘certain instances of medical malpractice may rise to the level of deliberate indifference;
namely, when the malpractice involves culpable recklessness, i.e., an act or a failure to act by the
prison doctor that evinces a conscious disregard of a substantial risk of serious harm.’” Chance,
143 F.3d at 703 (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996)).
Here, Tavares alleges an Eighth Amendment violation based upon alleged
inadequate medical treatment of his surgical wound. Tavares concedes that his wound was
treated, but contends that he should have received bandages for his wound, and that defendant
Deutsch was deliberately indifferent to his medical needs by discharging him without those
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bandages. Defendant Deutsch argues that the medical care that Tavares received was adequate,
and that even if it was not, defendant Deutsch was not deliberately indifferent to Tavares’s
needs.
At the motion to dismiss stage, this Court held that Tavares sufficiently pled the
objective element by alleging that “Deutsch failed to dress or bandage the wound, or to put
Tavares’s wrist in a splint.” See Tavares, 2015 WL 158863, at *6. However, the record now
reflects that a significant effort went into ensuring that Tavares’s wound did not become
infected. After the completion of his surgery, his wound was sutured. It was also covered in
Dermabond, which is “designed to prevent against surgical site infection in bonding the skin
together to prevent germs and water from entering.” (Pl.’s Decl. in Resp. and Opp’n to Def. Dr.
Deutsch Mot. for Summ. J. ¶ 5.) Furthermore, surgeons administered a prophylactic antibiotic to
prevent infection, and the “incision was washed out and cleansed with a sodium chloride
irrigation solution to clean the wound and remove debris.” (Decl. of Deutsch ¶ 18.)
Tavares argues that defendant Deutsch did not take reasonable measures to
protect his wound by failing to provide bandages upon discharge when Tavares explicitly asked
for them. (Pl.’s Mem. of Law in Supp. Of Pl.’s Ans. to Dr. Deutsch’s Mot. for Summ. J. 9.)
However, Tavares does not explain how defendant Deutsch acted unreasonably in denying his
request for bandages in light of the significant effort to protect his wound from infection.
Having participated in Tavares’s care throughout his surgery, Defendant Deutsch was aware of
the treatment that Tavares received, which included antibiotics during the operation, as well as
the application of Dermabond to the wound afterwards. (Id. 7.) Tavares does not allege that
bandages are provided as a matter of course for carpel tunnel surgery, and the evidence
demonstrates that the surgical team did not order bandages as post-operative care. (Pl.’s Decl. in
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Resp. and Opp’n to Def. Dr. Deutsch Mot. for Summ. J., Ex. 2.) Ultimately, Tavares fails to set
forth any evidence that defendant Deutsch was unreasonable, other than to say that he disagreed
with defendant Deutsch’s decision. While Tavares may have disagreed with the surgical team
and defendant Deutsch’s approach to treating his wound, disagreements over medical treatment
cannot support a claim of cruel and unusual punishment. See Alston, 672 F. Supp. 2d at 385
(“An inmate’s disagreement with his treatment or a difference of opinion over the type or course
of treatment do not support a claim of cruel and unusual punishment.”) (citation omitted).
Tavares also argues that Dermabond was insufficient protection against infection
because while Dermabond protects against germs and water, it did not protect his wound from
being “scratched, rubbed around by dirty steel hand-cuff[s].” (Pl.’s Resp. and Opp’n to Dr.
Michael Deutsch Decl. ¶ 18.) In other words, defendant Deutsch’s failure to provide bandages
was unreasonable in light of the fact that Tavares’s handcuffs would make Dermabond
ineffective. However, Tavares does not explain how wearing handcuffs would reduce the
efficacy of Dermabond. Dermabond is described as strengthening and protecting an incision by
“bonding the skin together.” Tavares does not set forth any evidence from which a reasonable
jury could conclude that handcuffs scratching against Dermabond could reduce its efficacy. Nor
does Tavares set forth any evidence from which a reasonable jury could conclude that
Dermabond is not as efficacious as bandages. Without more, Tavares’s unsupported assertion
does not raise a genuine issue of material fact. See Quarles v. Gen. Motors Corp. (Motors
Holding Div.), 758 F.2d 839, 840 (2d Cir. 1985) (“[M]ere conjecture or speculation by the party
resisting summary judgment does not provide a basis upon which to deny the motion.”).
Furthermore, Tavares’s argument fails to take into account the other precautions that the surgical
team took to ensure that his wound was protected from infection. See Chance, 143 F.3d 698,
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703 (2d Cir. 1998) (“So long as the treatment given is adequate, the fact that a prisoner might
prefer a different treatment does not give rise to an Eighth Amendment violation.”).
Even if the medical care that Tavares received was inadequate, Tavares has failed
to show that Defendant Deutsch was sufficiently culpable to create constitutional liability. In the
motion to dismiss opinion, this Court held that Tavares sufficiently pled the subjective prong,
because his motion could be construed as alleging that “Deutsch knew of Tavares’s heightened
susceptibility to infection, and consciously disregarded it by prioritizing the scheduled
resentencing over Tavares’s medical needs.” Tavares, 2015 WL 158863, at *6. However,
Tavares has failed to substantiate his allegation and instead, directly refutes it with his deposition
testimony. Tavares testified that he spoke with defendant Deutsch only for one to two minutes
before being discharged. (Tuffaha Declaration, Ex. A, Tavares Dep. 64:4-7.) During that
conversation, Tavares testified that defendant Deutsch only stated that everything was fine with
Tavares’s wound. (Id. 79:18-22.) Furthermore, when asked with who he discussed his court
date for resentencing, Tavares said that he discussed it with the transportation officers, (Id.
64:19-65:1), and explicitly testified that he did not discuss it with defendant Deutsch. (Id. 65:26.) Outside of this interaction in the intake area, Tavares does not allege that he spoke with
defendant Deutsch about his discharge. As such, Tavares has failed to demonstrate that
defendant Deutsch knew about, much less prioritized, his resentencing over medical care.
For the first time, in response to defendant Deutsch’s declaration, Tavares states
that when he spoke with defendant Deutsch in the intake area, defendant Deutsch explained that
he was being discharged because “the Department of Corrections [sic] need it Plaintiff to be
produce in Court for re-sentence.” (Pl.’s Resp. and Opp’n to Dr. Michael Deutsch Decl. ¶ 25.)
While the Court construes a pro se plaintiff’s allegations liberally, McPherson v. Coombe, 174
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F.3d 276, 280 (2d Cir. 1999), a party may not create a genuine issue of material fact with an
affidavit contradicting prior sworn testimony. See Trans-Orient Marine Corp. v. Star Trading &
Marine, Inc., 925 F.2d 566, 572-73 (2d Cir. 1991). While a material issue of fact may exist if
“subsequent sworn testimony . . . amplifies or explains, but does not merely contradict, [] prior
sworn testimony,” Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996), that is not the case
here. Tavares testified that he did not discuss a court date with defendant Deutsch. His answers
were clear, and his current contention can only be construed as contradicting his earlier
deposition testimony. Permitting Tavares to do so would thwart the purpose of summary
judgment. See Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) (“If
a party who has been examined at length on deposition could raise an issue of fact simply by
submitting an affidavit contradicting his own prior testimony, this would greatly diminish the
utility of summary judgment as a procedure for screening out sham issues of fact.”). Without
more, Tavares has failed to raise a genuine issue of material fact with respect to defendant
Deutsch’s state of mind.
CONCLUSION
For the foregoing reasons, defendant Deutsch’s motion for summary judgment
(Dkt. No. 112) is granted. The Clerk of the Court is directed to enter judgment for defendant and
close the case.
Counsel for the defendants shall provide Blocker with copies of all unreported
decisions cited herein.
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 and therefore in forma pauperis status is denied for the
purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
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SO ORDERED.
Dated: New York, New York
November 30, 2015
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