Butler v. Zamilus et al
Filing
117
MEMORANDUM AND OPINION re: 92 MOTION for Summary Judgment , filed by Ganner, Murray, Zamilus. The Motion is granted. The Clerk of the Court is respectfully requested to terminate the pending Motion (Dkt. No. 92) and close the case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/30/16) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
WILLIE BUTLER,
Plaintiff,
No. 14-CV-853 (KMK)
v.
OPINION & ORDER
DR. ZAMILUS, N.A. MURRAY, and RN
GANNER
Defendants.
Appearances
Willie Butler
Beacon, NY
Pro Se Plaintiff
Samuel Yaggy, Esq.
Donald Nowve, Esq.
Office of the New York State Attorney General
New York, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Plaintiff Willie Butler (“Plaintiff”), proceeding pro se, filed the instant Complaint (the
“Complaint”) against Defendants Dr. Zamilus, N.A. Murray, and RN “Ganner” (collectively,
“Defendants”) on February 5, 2014 pursuant to 42 U.S.C. § 1983, alleging that Defendants
violated his constitutional rights by failing to provide adequate medical care after removing an
ingrown toenail, failing to provide an open-toed medical shoe to protect his toe from infection,
and failing to issue a bus pass to Plaintiff. (See Compl. (Dkt. No. 2) ¶ V.) Before the Court is
Defendants’ Motion for Summary Judgment (the “Motion”) pursuant to Federal Rule of Civil
Procedure 56. (Dkt. No. 92.) For the reasons that follow, the Court grants the Motion.
I. Background
A. Factual Allegations
The following facts are taken from Defendants’ Statement Pursuant to Local Rule 56.1
and the supporting documents offered by Defendants and Plaintiff. (See Defs.’ Statement
Pursuant to Local Rule 56.1 (“Defs.’ 56.1”) (Dkt No. 94).) Although Plaintiff has not offered a
statement of undisputed facts pursuant to Local Rule 56.1, Plaintiff’s failure to file such a
statement does not “absolve[] the district court of even checking whether the citation [in the
Local Rule 56.1 Statement] supports the assertion.” Giannullo v. City of New York, 322 F.3d
139, 143 n.5 (2d Cir. 2003). Accordingly, the Court will examine the documents offered by
Defendants in support of their statement pursuant to Local Rule 56.1.
On December 18, 2013, while incarcerated at Otisville Correctional Facility, Plaintiff was
admitted to the infirmary complaining of pain emanating from an ingrown toenail on his left
great toe. (See Defs.’ 56.1 ¶ 1; Decl. of Samuel Yaggy in Supp. of Defs.’ Mot. for Summ. J.
Based on Qualified Immunity (“Yaggy Decl.”) Ex. A (“Medical Records”), at MED 167–68
(Dkt. No. 96).)1 The next day, Defendant Dr. Gaetan Zamilus (“Dr. Zamilus”) examined
Plaintiff and determined that the toenail should be removed. (See Defs.’ 56.1 ¶ 2; Yaggy Decl.
Ex. B (“Pl.’s Dep. Tr.”), at 8; Decl. of Gaetan Zamilus in Supp. of Defs.’ Mot. for Summ. J.
(“Zamilus Decl.”) ¶ 2.) Although the record includes a consent form signed by Plaintiff
consenting to Dr. Zamilus’s removal of the toenail, (see Defs.’ 56.1 ¶ 2; Medical Records at
MED 202), Plaintiff disputes that he signed any such form or ever consented to Dr. Zamilus
removing the toenail, (see Pl.’s Dep. Tr. 22–23). Nevertheless, Dr. Zamilus removed the toenail
1
The Court cites to the “MED” page numbers located at the bottom of each page in
Exhibit A to Samuel Yaggy’s declaration.
2
and prescribed a ten day course of an antibiotic called Bactrim. (See Defs.’ 56.1 ¶¶ 2–3; Medical
Records at MED 167, 198; Zamilus Decl. ¶ 2.)2
Although Plaintiff was initially scheduled to be discharged from the infirmary on
December 20, 2013, he complained of pain and difficulty walking, and thereafter remained in the
infirmary for an additional eight days. (See Defs.’ 56.1 ¶¶ 5–6; Medical Records at MED 35;
Pl.’s Dep. Tr. 8.) Plaintiff was given Tylenol and monitored by the medical staff. (See Defs.’
56.1 ¶¶ 5–6; Medical Records at MED 35, 168, 171.) On December 22, the medical staff
observed redness on Plaintiff’s left great toe. (See Defs.’ 56.1 ¶ 7; Medical Records at MED
171.) On December 23, the medical staff noted that Plaintiff’s wound was open to the air and
was draining. (See Defs.’ 56.1 ¶ 8; Medical Records at MED 172.) On December 25, the
medical staff noticed some dried blood, some swelling in the nail bed of Plaintiff’s great left toe,
and some drainage, but no sign of an infection. (See Defs.’ 56.1 ¶ 10; Medical Records at MED
173.) Plaintiff’s wound was then lightly covered with gauze. (See Defs.’ 56.1 ¶ 10; Medical
Records at MED 173.)
On December 26, Dr. Zamilus gave Plaintiff a “program restriction,” effective until
January 1, 2014. (See Defs.’ 56.1 ¶ 11; Medical Records at MED 200.) The medical records
indicate that Plaintiff expressed no complaints from December 23 to December 27, when he was
released from the infirmary. (See Defs.’ 56.1 ¶¶ 8–12; Medical Records at MED 173–74.) On
the day he was discharged, the medical records state that Plaintiff told medical staff that he was
“good” and “want[ed] to get out of [the infirmary],” (see Defs.’ 56.1 ¶ 12; Medical Records at
MED 174), but Plaintiff disputes this account, (see Pl.’s Resp. to Dr. Zamilus Mot. of Summ. J.
2
Dr. Zamilus is licensed by New York State to practice family medicine and, as a result
of this license, is allowed to perform ingrown toenail removal procedures. (See Defs.’ 56.1 ¶ 4;
Zamilus Decl. ¶ 2.)
3
Rule 56 ¶ 8 (Dkt. No. 107)). Plaintiff testified that on the day he was discharged, he indicated to
Dr. Zamilus that he could not use the medical boot provided because of the gauze on his great
left toe and that he therefore needed a different medical boot. (See Pl.’s Dep. Tr. 8.) Plaintiff
requested a bus pass from Dr. Zamilus, but Dr. Zamilus declined to issue him one. (See id.; see
also Zamilus Decl. ¶ 4.) Later that day, on December 27, 2013, Plaintiff filed a grievance related
to Dr. Zamilus’s treatment of his toe. (See Defs.’ 56.1 ¶ 13; Yaggy Decl. Ex. C (“Grievance
Filings”), at unnumbered 1.)
On December 30, 2013, Plaintiff returned to the infirmary and was seen by Nurse D.
Ramos and Dr. Ferdous. (See Defs.’ 56.1 ¶ 14; Medical Records at MED 34; see also Pl.’s Dep.
Tr. 9.) Nurse Ramos noted a “slight yellowish drainage” from Plaintiff’s left great toe, but no
redness, swelling, or odor. (See Defs.’ 56.1 ¶ 14; Medical Records at MED 34.) Dr. Ferdous
examined Plaintiff, found no discharge, but nevertheless extended Plaintiff’s program restriction
for an additional two weeks. (See Defs.’ 56.1 ¶ 14; Medical Records at MED 34, 199.)
On January 7, 2014, Plaintiff again returned to the infirmary, complaining that his toe
was bleeding. (See Defs.’ 56.1 ¶ 15; Medical Records at MED 33; Pl.’s Dep. Tr. 14.) Defendant
Nurse Susan Gaynor (“Gaynor”), mistakenly identified as “Ganner” in the Complaint, examined
Plaintiff, but found no bleeding or signs of infection. (See Defs.’ 56.1 ¶ 15; Medical Records at
MED 33; Decl. of Susan Gaynor in Supp. of Defs.’ Mot. for Summ. J. (“Gaynor Decl.”) ¶ 2
(Dkt. No. 99).) Gaynor discharged Plaintiff after giving him more gauze for his toe. (See Defs.’
56.1 ¶ 15; Gaynor Decl. ¶ 2.) Later that same day, Dr. Zamilus referred Plaintiff to a podiatrist.
(See Defs.’ 56.1 ¶ 15; Medical Records at MED 97.) Plaintiff supplemented his earlier-filed
grievance on January 7, 2014, prior to his grievance hearing, with information regarding the
examination by Gaynor. (See Defs.’ 56.1 ¶ 13; Grievance Filings at unnumbered 3.)
4
On January 9, 2014, at Plaintiff’s grievance hearing, Defendant Nurse Administrator
Rhonda Murray (“Murray”) examined Plaintiff and detected no signs of infection and no
discharge from Plaintiff’s left great toe. (See Defs.’ 56.1 ¶ 16; Decl. of Rhonda Murray in Supp.
of Defs.’ Mot. for Summ. J. (“Murray Decl.”) ¶ 2 (Dkt. No. 98).) Plaintiff claims that Murray
“acknowledge[d] that [he] did have an infection because these were [Murray’s] words,” (Pl.’s
Dep. Tr. 9), but Murray denies ever making such a statement, (see Murray Decl. ¶ 2). Murray
advised Plaintiff to come to sick call if he began showing signs of an infection. (See Defs.’ 56.1
¶ 16; Murray Decl. ¶ 2.)
On January 13, 2014, Plaintiff went to the infirmary and was examined by Nurse A. Dah.
(See Defs.’ 56.1 ¶ 17; Medical Records at MED 33.) Nurse Dah detected no sign of an infection,
but extended Plaintiff’s program restriction for one day. (See Defs.’ 56.1 ¶ 17; Medical Records
at MED 33, 196.)
On January 14, 2014, Plaintiff was again seen by Dr. Zamilus in the infirmary after
complaining of pain in his left great toe. (See Defs.’ 56.1 ¶ 18; Medical Records at MED 32.)
Dr. Zamilus detected no infection, pus, or drainage. (See Defs.’ 56.1 ¶ 18; Pl.’s Dep. Tr. 10;
Zamilus Decl. ¶ 6.) Dr. Zamilus extended Plaintiff’s program restriction until January 19, 2014.
(See Defs.’ 56.1 ¶ 18; Medical Records at MED 195.) Plaintiff returned to the infirmary on
January 17, 2014 complaining of drainage from his left great toe, but Nurse Dah again noted that
she detected no drainage. (See Defs.’ 56.1 ¶ 19; Medical Records at MED 32.) Nurse Dah also
described Plaintiff as “very impatient” and noted that he “[didn’t] want to listen.” (Medical
Records at MED 32.) On January 22, Plaintiff’s program restriction was extended until January
29, 2014. (See Defs.’ 56.1 ¶ 20; Medical Records at MED 31, 194.) On January 27, Plaintiff’s
5
program restriction was again extended, this time until February 13, 2014. (See Defs.’ 56.1 ¶ 20;
Medical Records at MED 31, 193.)
On January 29, 2014, Plaintiff met with podiatrist Dr. Andrew Shapiro. (See Defs.’ 56.1
¶ 21; Medical Records at MED 97.) On January 30, Plaintiff met with Dr. Zamilus to follow up
on the consultation with Dr. Shapiro. (See Defs.’ 56.1 ¶ 21; Medical Records at MED 31; Pl.’s
Dep. Tr. 13–14.) Dr. Zamilus detected no signs of infection and concluded that Plaintiff required
no further restriction from programs and did not require a bus pass. (See Defs.’ 56.1 ¶ 21;
Zamilus Decl. ¶ 7; see also Pl. Dep. Tr. 14.) After Plaintiff left the infirmary, the nursing staff
spoke with Dr. Shapiro, who indicated that Plaintiff’s left great toe was fine, but that he needed
to have his right great toenail removed as well. (See Defs.’ 56.1 ¶ 21; Zamilus Decl. ¶ 8.)
On February 4, 2014, Dr. Zamilus met with Plaintiff for a follow-up appointment,
wherein he explained that he was referring Plaintiff to Dr. Shapiro for the procedure on his right
great toe. (See Defs.’ 56.1 ¶ 22; Medical Records at MED 30, 96; Zamilus Decl. ¶ 8.) Plaintiff
again requested a bus pass, but Dr. Zamilus detected no signs of an infection and again denied
the request. (See Defs.’ 56.1 ¶ 22; Medical Records at MED 30; Zamilus Decl. ¶ 8.) On
February 6, 2014, Plaintiff requested an appointment for a “reasonable accommodation due to
[his] foot problem.” (See Defs.’ 56.1 ¶ 23; Medical Records at MED 29.) On February 12,
2014, Dr. Davis examined Plaintiff and determined that Plaintiff did not require a bus pass. (See
Defs.’ 56.1 ¶ 23; Medical Records at MED 29; see also Pl.’s Dep. Tr. 10 (“[Dr. Davis’s] words
to me was he cannot override the doctor that’s inside this facility because that is his
supervisor.”).)
6
On April 2, 2014, Plaintiff met with Dr. Shapiro to discuss the operation on his right
great toenail. (See Defs.’ 56.1 ¶ 24; Medical Records at MED 96.) Plaintiff declined the
procedure. (See Defs.’ 56.1 ¶ 24; Medical Records at MED 96.)
On April 9, 2014, Plaintiff was examined by Dr. Ferdous, who noted no discharge from
Plaintiff’s left great toe and no swelling. (See Defs.’ 56.1 ¶ 25; Medical Records at MED 27.)
Gaynor alleges that Plaintiff was uncooperative and disruptive with her, and that Plaintiff would
have received a misbehavior report had he not apologized for his behavior. (See Defs.’ 56.1 ¶
25; Gaynor Decl. ¶ 4.) Plaintiff disputes this account, noting that “if you get into [any] type of
situation around any of these staffs, they gonna lock you up, man.” (Pl.’s Dep. Tr. 17.)
B. Procedural History
Plaintiff filed the Complaint on February 5, 2014, seeking $5,500 in compensatory
damages. (See Compl. ¶ V.) Service was effected on Gaynor and Murray on May 15, 2014, (see
Dkt. Nos. 20, 22), and those Defendants filed an Answer to the Complaint on September 17,
2014, (see Dkt. No. 36). Service was effected on Dr. Zamilus on February 19, 2015, (see Dkt.
No. 59), and Dr. Zamilus filed an Answer on March 23, 2015, (see Dkt. No. 61). The Court set a
discovery schedule on May 1, 2015, (see Dkt. (minute entry for May 1, 2015)), and Magistrate
Judge Paul E. Davison oversaw discovery, (see Order Referring Case to Magistrate Judge (Dkt.
No. 66)). After a pre-motion conference was held, (see Dkt. (minute entry for Dec. 9, 2015)), the
Court set a briefing schedule for the Summary Judgment Motion, (see Motion Scheduling Order
(Dkt. No. 88)). Defendants filed the Motion and supporting papers on January 29, 2016. (See
Dkt. Nos. 92–101.) Plaintiff filed responses to each Defendant on February 19, 2016, (see Dkt.
Nos. 107–09), and also filed an affidavit in opposition to the Motion, (see Pl.’s Aff. in Opp’n to
Defs.’ Mot. for Summ. J. Pursuant to Rule 56 (“Pl.’s Opp’n”) (Dkt. No. 110)). Defendants filed
7
their reply on March 18, 2016. (See Defs.’ Reply Mem. of Law (Dkt. No. 111).) Plaintiff filed a
surreply on March 22, 2016, (see Dkt. No. 114), which was accepted for filing on March 30,
2016, (see Dkt. No. 113).
II. Discussion
A. Standard of Review
Summary judgment is appropriate where 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); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123–24 (2d Cir.
2014) (same). “In 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.” Brod v. Omya, Inc., 653
F.3d 156, 164 (2d Cir. 2011) (internal quotation marks omitted); see also Borough of Upper
Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y. 2014)
(same). “It is the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy
Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Berry v.
Marchinkowski, 137 F. Supp. 3d 495, 521 (S.D.N.Y. 2015) (same).
“However, when 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,” in which case “the nonmoving party must come
forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to
avoid summary judgment.” CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114,
123 (2d Cir. 2013) (alteration and internal quotation marks omitted). Further, “[t]o survive a
[summary judgment] motion . . . , [a nonmovant] need[s] to create more than a ‘metaphysical’
8
possibility that his allegations were correct; he need[s] to ‘come forward with specific facts
showing that there is a genuine issue for trial,’” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d
Cir. 2012) (emphasis and internal quotation marks omitted) (quoting Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)), “and cannot rely on the mere allegations or
denials contained in the pleadings,” Guardian Life Ins. Co. v. Gilmore, 45 F. Supp. 3d 310, 322
(S.D.N.Y. 2014) (internal quotation marks omitted); see also Wright v. Goord, 554 F.3d 255, 266
(2d Cir. 2009) (“When a motion for summary judgment is properly supported by documents or
other evidentiary materials, the party opposing summary judgment may not merely rest on the
allegations or denials of his pleading . . . .”).
“On a motion for summary judgment, 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, 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation marks omitted). At this stage,
“[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any
factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks omitted). Thus, a
court’s goal should be “to isolate and dispose of factually unsupported claims.” Geneva Pharm.
Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323–24 (1986)). Finally, the Second Circuit has instructed that “special
solicitude” should be afforded a pro se litigant on a motion for summary judgment, see Graham
v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988); see also Berry, 137 F. Supp. 3d at 522 (same),
whereby a court should construe “the submissions of a pro se litigant . . . liberally” and interpret
them “to raise the strongest arguments that they suggest,” Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (italics and internal quotation marks omitted).
9
B. Materials Considered
When ruling on a motion for summary judgment, a district court should consider only
evidence that would be admissible at trial. See Nora Beverages, Inc. v. Perrier Group of Am.,
Inc., 164 F.3d 736, 746 (2d Cir. 1998). “[W]here a party relies on affidavits . . . to establish
facts, the statements ‘must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant . . . is competent to testify on the matters
stated.’” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(c)(4));
see also Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988) (“Rule 56 requires
a motion for summary judgment to be supported with affidavits based on personal
knowledge . . . .”); Baity v. Kralik, 51 F. Supp. 3d 414, 419 (S.D.N.Y. 2014) (disregarding
“statements not based on [the] [p]laintiff’s personal knowledge”); Flaherty v. Filardi, No. 03CV-2167, 2007 WL 163112, at *5 (S.D.N.Y. Jan. 24, 2007) (“The test for admissibility is
whether a reasonable trier of fact could believe the witness had personal knowledge.” (internal
quotation marks omitted)); Zigmund v. Foster, 106 F. Supp. 2d 352, 356 (D. Conn. 2000) (noting
that “[a]n affidavit in which the plaintiff merely restates the conclusory allegations of the
complaint” is insufficient to support a motion for summary judgment).
In addition, “a pro se party’s bald assertion, completely unsupported by evidence, is not
sufficient to overcome a motion for summary judgment.” Berry, 137 F. Supp. 3d at 519 (internal
quotation marks omitted); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (“The
non-moving party may not rely on conclusory allegations or unsubstantiated speculation.”). The
Court, therefore, disregards assertions in Plaintiff’s opposition papers that are not supported by
admissible evidence. See Mitchell v. Igoe, No. 06-CV-186, 2009 WL 3165659, at *8 (N.D.N.Y.
Sept. 25, 2009) (“Statements contained within a memorandum . . . without proper evidentiary
10
support, do not constitute competent evidence upon which a court may base its ruling upon a
motion for summary judgment.”), aff’d, 407 F. App’x 536 (2d Cir. 2011).
C. Analysis
It is unclear what grounds for relief Plaintiff intends to assert in this Action. Although
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, (see Compl. 1), Plaintiff asks the Court
to “penalize . . . [D]efendants for . . . medical malpractice,” (see id. ¶ V), a claim not cognizable
under § 1983, see 42 U.S.C. § 1983 (providing a cause of action for any person deprived of “any
rights, privilege, or immunities secured by the Constitution and laws”); see also Gonzalez v.
Wright, 665 F. Supp. 2d 334, 347 (S.D.N.Y. 2009) (“Malpractice claims cannot be brought under
[§] 1983, because they sound in negligence, and mere negligence does not rise to the level of a
constitutional tort.” (internal quotation marks omitted)). Plaintiff also suggests that the alleged
misconduct was “spitefully done after [Defendants] got wind of [Plaintiff] placing a grievance
against medical staff.” (Compl. ¶ V.) Construing Plaintiff’s allegations and subsequent filings
to “raise the strongest arguments that they suggest,” Triestman, 470 F.3d at 474 (italics and
internal quotation marks omitted), the Court considers Plaintiff to be raising an Eighth
Amendment deliberate indifference claim and a First Amendment retaliation claim. The Court
addresses each claim in turn.
1. Eighth Amendment Deliberate Indifference
Plaintiff alleges that he received improper medical care when Defendants failed to
properly treat Plaintiff’s toe and failed to provide appropriate medical accommodations, such as
a modified walking boot or a bus pass. (Compl. ¶ V.)
Defendants argue that the record evidence contradicts Plaintiff’s claim that the treatment
of his great left toe was inadequate, pointing to the medical files and declarations of Defendants
11
showing that no medical personnel who examined Plaintiff detected any signs of infection or
bleeding. (See Defs.’ Mem. of Law in Supp. of Defs.’ Mot. for Summ. J. (“Defs.’ Mem.”) 8
(Dkt. No. 93).) Defendants further argue that even assuming the treatment of Plaintiff’s toe was
inadequate, the alleged toe injury was not sufficiently serious for Eighth Amendment purposes,
(see id. at 9–10), and there is no evidence that Defendants were deliberately indifferent to
Plaintiff’s medical needs, (see id. at 10–11).
a. Applicable Law
“The Eighth Amendment forbids deliberate indifference to serious medical needs of
prisoners.” Spavone v. N.Y. State Dep’t of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013)
(internal quotation marks omitted). “There are two elements to a claim of deliberate indifference
to a serious medical condition.” Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009). “The first
requirement is objective: the alleged deprivation of adequate medical care must be sufficiently
serious.” Spavone, 719 F.3d at 138 (internal quotation marks omitted). Under this objective
requirement, a court must inquire first, “whether the prisoner was actually deprived of adequate
medical care,” and second, “whether the inadequacy in medical care is sufficiently serious.”
Salahuddin v. Goord, 467 F.3d 263, 279–80 (2d Cir. 2006). Under the first inquiry, adequate
medical care is reasonable care such that “prison officials who act reasonably cannot be found
liable.” Farmer v. Brennan, 511 U.S. 825, 845 (1994). Under the second inquiry, the Court
examines “how the offending conduct is inadequate and what harm, if any, the inadequacy has
caused or will likely cause the prisoner.” Salahuddin, 467 F.3d at 280. As part of this objective
element, “the inmate must show that the conditions, either alone or in combination, pose an
unreasonable risk of serious damage to his health.” Walker v. Schult, 717 F.3d 119, 125 (2d Cir.
2013). “There is no settled, precise metric to guide a court in its estimation of the seriousness of
12
a prisoner’s medical condition.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003).
Nevertheless, the Second Circuit has presented “a non-exhaustive list” of factors to consider:
“(1) whether a reasonable doctor or patient would perceive the medical need in question as
‘important and worthy of comment or treatment,’ (2) whether the medical condition significantly
affects daily activities, and (3) ‘the existence of chronic and substantial pain.’” Id. (quoting
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)); see also Morales v. Fischer, 46 F.
Supp. 3d 239, 247 (W.D.N.Y. 2014) (same).
Courts distinguish between situations where no medical attention is given and situations
where medical attention is given, but is objectively inadequate. In the former, the Court need
only “examine whether the inmate’s medical condition is sufficiently serious.” Salahuddin, 467
F.3d at 280. In the latter, however, the inquiry is “narrower”; for example, “if the prisoner is
receiving on-going treatment and the offending conduct is an unreasonable delay or interruption
in that treatment, the seriousness inquiry ‘focus[es] on the challenged delay or interruption in
treatment rather than the prisoner’s underlying medical condition alone.’” Id. (quoting Smith v.
Carpenter, 316 F.3d 178, 185 (2d Cir. 2003)).
“The second requirement is subjective: the charged officials must be subjectively reckless
in their denial of medical care.” Spavone, 719 F.3d at 138. Here, the inquiry is whether
defendants “knew of and disregarded an excessive risk to [a plaintiff’s] health or safety” while
“both aware of facts from which the inference could be drawn that a substantial risk of serious
harm existed, and also drew the inference.” Caiozzo, 581 F.3d at 72 (alterations and internal
quotation marks omitted); see also Farmer, 511 U.S. at 837 (“[T]he official must both be aware
of facts from which the inference could be drawn that a substantial risk of serious harm exists,
and he [or she] must also draw the inference.”). “Deliberate indifference is a mental state
13
equivalent to subjective recklessness,” and it “requires that the charged official act or fail to act
while actually aware of a substantial risk that serious inmate harm will result.” Nielsen v. Rabin,
746 F.3d 58, 63 (2d Cir. 2014) (internal quotation marks omitted); see also Gladden v. City of
New York, No. 12-CV-7822, 2013 WL 4647193, at *2 (S.D.N.Y. Aug. 29, 2013) (“To meet the
subjective element, the plaintiff must show that the defendant acted with more than mere
negligence, and instead knew of and disregarded an excessive risk to inmate health or safety.”
(internal quotation marks omitted)). In contrast, “mere medical malpractice is not tantamount to
deliberate indifference,” unless “the malpractice involves culpable recklessness, i.e., . . . a
conscious disregard of a substantial risk of serious harm.” Chance, 143 F.3d at 703 (internal
quotation marks omitted). Moreover, “mere disagreement over the proper treatment does not
create a constitutional claim,” and “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.” Id.; see also Crique v. Magill, No. 12-CV-3345, 2013 WL 3783735, at *3 (S.D.N.Y.
July 9, 2013) (“The mere fact that an inmate feels that he did not receive adequate attention . . .
does not constitute deliberate indifference.”).
Defendants argue that the evidence is insufficient to meet any step in this analysis.
b. Application
Under the “objective” prong of the Eighth Amendment analysis, the first question is
whether Plaintiff was deprived of objectively adequate medical care. Examining the record
evidence, the Court concludes that he was not.
Plaintiff first appears to contend that Dr. Zamilus was not qualified to perform the
operation on Plaintiff’s great left toe. (See Pl.’s Opp’n ¶ 4; Pl.’s Opp’n Ex. 2, at unnumbered 5.)
This allegation is unsubstantiated by the record. For example, Plaintiff’s assertion that Dr.
14
Zamilus was not qualified to perform the procedure is based on hearsay from Dr. Shapiro, (see
Pl.’s Opp’n Ex. 2, at unnumbered 5), who has not offered any testimony in this matter. Because
the alleged statement from Dr. Shapiro that Dr. Zamilus was not qualified to perform the surgery
is offered for its alleged truth, and because there is no hearsay exception or exclusion that would
allow the testimony to be entered at trial, see Fed. R. Evid. 801(a)–(c), 802, Plaintiff’s statement
regarding the qualifications of Dr. Zamilus to perform the procedure on Plaintiff’s left great toe
does not bear on the Motion, see Nora Beverages, 164 F.3d at 746. Furthermore, the admissible
record evidence indicates that Dr. Zamilus was, in fact, qualified to perform the operation. (See
Grievance Filings at unnumbered 11; Zamilus Decl. ¶ 3.) Accordingly, this Court has no basis
upon which to find that Dr. Zamilus was unqualified to perform the procedure in question.
With regard to the adequacy of Plaintiff’s medical care, Plaintiff does not claim that he
received no medical attention; indeed, Plaintiff was seen by medical personnel no less than 20
times in the four months following his operation. (See Medical Records at MED 26–34.)3
Rather, Plaintiff appears to contend that the operation and the treatment thereafter were
objectively unreasonable and contributed to an eventual infection of his toe. (See Pl.’s Opp’n
¶¶ 3–6.) But beyond subjective claims of pain in his left great toe, (see, e.g., Medical Records at
MED 31–33), Plaintiff offers no objective evidence that his left great toe required any medical
attention beyond the regular examinations and prescriptions he received. Additionally, of the at
least eight medical professionals who examined Plaintiff’s great left toe after the operation, not a
3
Plaintiff’s suggestion that “[D]efendants attempted to falsify information in Plaintiff’s
Medical Records,” (Pl.’s Opp’n ¶ 10), hardly warrants discussion. That Plaintiff disputes the
observations and recommendations of the various medical personnel who examined him does not
give credence to the serious accusation levied here that medical records submitted under penalty
of perjury were falsified or otherwise altered. Simply put, Plaintiff does not offer any
evidentiary support for this claim.
15
single one indicated in the medical records that Plaintiff’s toe was infected. (See Medical
Records at MED 31–33, 95–97.) And contrary to Plaintiff’s assertion that Nurse Ramos, who
examined Plaintiff on December 30, 2013, indicated that Plaintiff’s toe exhibited a “very nasty
odor,” (Pl.’s Opp’n ¶ 5), the record reflects, in fact, that Nurse Ramos indicated there was no
“redness,” “swelling,” or “odor,” and only noted Plaintiff’s complaint that his toe was very
painful and remarked on Plaintiff’s “steady[,] slow gait,” (Medical Records at MED 34). None
of these observations indicates an infection, much less one that required immediate medical
attention.
Moreover, Plaintiff’s assertion that he was deprived of adequate medical care because
Defendants denied him a bus pass and a modified walking boot is not supported by the evidence.
Beyond his own conviction that he was entitled to a bus pass, Plaintiff offers no evidence that a
bus pass was needed or that his medical condition was exacerbated by having to walk. Absent
evidence that the bus pass was required as a matter of medical necessity, there is no basis to
second-guess Defendants’ medical judgment on this issue. See Muhammad v. Francis, No.
94-CV-2244, 1996 WL 657922, at *7 (S.D.N.Y. Nov. 13, 1996) (“[The] defendants’ denials of
[the] plaintiff’s requests for . . . bus passes . . . were well within the parameters of medical
judgment. [The] [d]efendants’ medical decisions not to grant [the] plaintiff’s requests do not
demonstrate cruel and unusual punishment.”); Johnson v. Dep’t of Corr., No. 93-CV-8365, 1994
WL 665934, at *4 (S.D.N.Y. Nov. 28, 1994) (“The record shows that [the plaintiff’s] request for
a bus pass was denied by prison officials . . . after an examination and observation that he was in
no acute distress ambulating well with no assistance.” (alteration and internal quotation marks
omitted)). And Plaintiff has adduced no evidence, and indeed, appears to have abandoned his
claim, that a modified walking boot was necessary to accommodate his medical condition.
16
Even assuming Plaintiff was deprived of adequate medical care, Plaintiff has not met the
second requirement under the objective prong of the Eighth Amendment analysis; that is,
Plaintiff has not shown that the deprivation of adequate medical care was sufficiently serious to
implicate the Eighth Amendment. In general, “subjective complaints of pain are not sufficient to
satisfy [the serious medical need] standard.” Thomas v. Nassau Cty. Corr. Ctr., 288 F. Supp. 2d
333, 338 (E.D.N.Y. 2003); see also Evan v. Manos, 336 F. Supp. 2d 255, 260 (W.D.N.Y. 2004)
(holding that “an assertion of pain sensation alone, unaccompanied by any large medical
complications, does not amount to a serious medical need under the Eighth Amendment”
(alteration and internal quotation marks omitted)). Plaintiff contends that his foot became
infected with “[y]ellow [d]rainage,” (Pl.’s Opp’n ¶ 1), thus necessitating additional medical
attention. But while the record does reflect that Nurse Ramos detected some “yellowish
drainage,” (Medical Records at MED 34; Pl.’s Dep. Tr. 9), no medical professional who
examined Plaintiff detected an infection of any kind, (see Medical Records at MED 26–34). And
although Plaintiff insists otherwise, (see Pl.’s Dep. Tr. 9), there is no evidence supporting
Plaintiff’s claim that Murray or any other medical professional stated at Plaintiff’s grievance
hearing that Plaintiff had an infection, (see Grievance Filings at unnumbered 11). Even taking as
true Plaintiff’s assertion that Murray indicated at the grievance hearing that Plaintiff had an
infection, it is undisputed that Murray never offered any opinion that Plaintiff’s alleged infection
was serious, that it had been exacerbated by Dr. Zamilus’s failure to provide adequate medical
treatment or provide a bus pass, or that Dr. Zamilus’s treatment of Plaintiff’s toe was deficient in
any way.
Finally, even were the Court to assume that Defendants rendered insufficient medical
attention and that Plaintiff’s condition was serious enough to implicate the Eighth Amendment,
17
there is no evidence in the record suggesting that Defendants acted “with a sufficiently culpable
state of mind, such as deliberate indifference to inmate health or safety.” Walker, 717 F.3d at
125 (alteration and internal quotation marks omitted). Even if Plaintiff is correct that his great
left toe was infected, there is no indication that any of Defendants knew of such an infection.
See Caiozzo, 581 F.3d at 72 (finding the plaintiff failed to establish deliberate indifference where
“[m]ost of the evidence offered . . . was in support of the argument that [the defendant] should
have been aware that [the plaintiff] was in immediate danger,” not “that [the defendant] was
actually aware of that immediate danger” (emphasis in original)); see also Hathaway v.
Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (“A prison official does not act in a deliberately
indifferent manner unless that official ‘knows of and disregards an excessive risk to inmate
health or safety . . . . ’” (quoting Farmer, 511 U.S. at 837); Maccharulo v. Gould, 643 F. Supp.
2d 587, 599 (S.D.N.Y. 2009) (same). Absent evidence that Defendants knew of a serious
medical condition and failed to act on it, Plaintiff cannot establish deliberate indifference. And
the record reflects that Defendants continued to examine Plaintiff and treat him throughout the
time period in question, (see Medical Records at MED 26–34), further undermining the notion
that Defendants were deliberately indifferent to Plaintiff’s complaints. See, e.g., Morrison v.
Mamis, No. 08-CV-4302, 2008 WL 5451639, at *8 (S.D.N.Y. Dec. 18, 2008) (no deliberate
indifference where “nurses dispensed medicine to [the plaintiff] and responded to his complaints
almost every day”), adopted by 2009 WL 2168845 (S.D.N.Y. July 20, 2009); Abney v.
McGinnis, No. 01-CV-8444, 2007 WL 844675, at *3 (S.D.N.Y. Mar. 16, 2007) (no deliberate
indifference where the orthotics specialist met with the plaintiff 13 times within an almost two
year period); Rivera v. Goord, 253 F. Supp. 2d 735, 755 (S.D.N.Y. 2003) (no deliberate
indifference where the plaintiff “was frequently examined and treated for various conditions by a
18
total of 21 different doctors”); see also Hathaway, 99 F.3d at 553 (“[M]ere medical malpractice
is not tantamount to deliberate indifference . . . . (internal quotation marks omitted)).
Put simply, Plaintiff has adduced no evidence, beyond his own self-serving assertions,
that Defendants rendered inadequate medical care, that their actions caused Plaintiff serious
medical injury, or that they acted with deliberate indifference. As the burden of proof is on
Plaintiff, summary judgment is appropriate for Defendants on Plaintiff’s Eighth Amendment
claim.
2. First Amendment Retaliation
Plaintiff alleges that Defendants acted “spitefully” after getting “wind of [Plaintiff]
placing a grievance against medical staff.” (Compl. ¶ V.) The Court construes this as a claim
for retaliation in violation of the First Amendment. With regard to Dr. Zamilus, Plaintiff alleges
that Dr. Zamilus retaliated by failing to issue a bus pass, (see Pl.’s Dep. Tr. 60), failing to
properly examine his foot following the procedure, (see id. at 16, 31), threatening to transfer him
out of the facility, (see Compl. Ex. 2, at unnumbered 4), removing Plaintiff’s program restriction,
(see id.; Pl.’s Dep. Tr. 14, 53), and instructing Gaynor and Murray to withhold medical care,
(Pl.’s Dep. Tr. 73). With respect to Gaynor and Murray, Plaintiff makes no specific allegation
that they acted out of retaliation, but the Court will construe Plaintiff’s arguments as to the
allegedly inadequate medical care and accommodations provided by Gaynor and Murray as
allegations that they provided inadequate care out of retaliation for Plaintiff’s grievance filed
against Dr. Zamilus on December 7, 2013, supplemented on January 7, 2014 with allegations
against Gaynor. (See Grievance Filings at unnumbered 1, 3.)
Defendants argue that no admissible evidence indicates that Dr. Zamilus acted out of
retaliation or instructed Gaynor or Murray to provided inadequate medical care. (See Defs.’
19
Mem. 13–14.) Defendants point out that the record evidence indicates no sign of an infection
and no need for a bus pass. (See id.) Moreover, Defendants argue, there is no causal connection
between the filing of the grievance and the allegedly adverse actions, as Dr. Zamilus has denied
any knowledge of the grievance. (See id. at 14 (citing Zamilus Decl. ¶ 11).) With respect to
Gaynor and Murray, Defendants argue that there is no evidence, beyond Plaintiff’s own
speculation, Gaynor even knew of the grievance, and that there is no evidence that Murray’s
examination of Plaintiff at the grievance hearing was conducted with a retaliatory intent. (See
Defs.’ Mem. 15.) Plaintiff offers only the conclusory response that “Dr. Zamilus was in fact
being spiteful and bias[ed] as w[ell as] retaliating.” (Pl.’s Opp’n ¶ 12.)
a. Applicable Law
A plaintiff asserting a First Amendment retaliation claim must allege “(1) that the speech
or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff,
and (3) that there was a causal connection between the protected speech and the adverse action.”
Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009) (internal quotation marks omitted). Courts
are instructed to “approach prisoner retaliation claims with skepticism and particular care,
because virtually any adverse action taken against a prisoner by a prison official . . . can be
characterized as a constitutionally proscribed retaliatory act.” Davis v. Goord, 320 F.3d 346, 352
(2d Cir. 2003) (internal quotation marks omitted). Accordingly, First Amendment retaliation
claims brought by prisoners must “be ‘supported by specific and detailed factual allegations,’ not
stated ‘in wholly conclusory terms.’” Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015)
(quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983), overruled on other grounds by
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)).
20
b. Application
Plaintiff’s filing of a grievance against Dr. Zamilus and Gaynor is protected conduct and
therefore meets the first prong of the inquiry. See Graham v. Henderson, 89 F.3d 75, 80 (2d Cir.
1996); Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988). The Court will assume, without
deciding, that the alleged failure to provide adequate medical care and accommodations meets
the second prong. However, Plaintiff has failed the third prong—whether there was a causal
connection between the protected conduct and the adverse action—with respect to all three
Defendants.
Regarding Plaintiff’s claims against Dr. Zamilus, Plaintiff has established no causal
connection between the allegedly adverse actions and the protected conduct. Dr. Zamilus avers
that he did not even know of the grievance filed against him by Plaintiff at the time he treated
Plaintiff. (See Zamilus Decl. ¶ 11.) A plaintiff cannot sustain a claim of retaliation without
proving that the defendant knew of the protected conduct, in this case, the grievance filed against
Dr. Zamilus. See Wesley v. Kalos, No. 97-CV-1598, 1997 WL 767557, at *5 (S.D.N.Y. Dec. 11,
1997) (“To establish a claim of retaliatory transfer requires [the plaintiff], at a minimum, to
assert facts to show that the [d]efendants knew of [the plaintiff’s] complaints prior to the
transfer.”); see also Alston v. Pafumi, No. 09-CV-1978, 2016 WL 81785, at *7 (D. Conn. Jan. 7,
2016) (granting partial summary judgment where the plaintiff identified “no record evidence
from which a reasonable jury could infer that any other defendant was aware of [the plaintiff’s]
complaints”), clarifying on denial of reconsideration, 2016 WL 447423 (D. Conn. Feb. 4, 2016);
Tirado v. Shutt, No. 13-CV-2848, 2015 WL 774982, at *10 (S.D.N.Y. Feb. 23, 2015) (“Absent
evidence that any defendant knew about his . . . grievance, [the plaintiff] has failed to provide
any basis to believe that they retaliated against him for a grievance in which they were not
21
named.”), adopted in relevant part by 2015 WL 4476027 (S.D.N.Y. July 22, 2015). Here, there
is no evidence to contradict Dr. Zamilus’s sworn statement that he was not aware of the
grievance filed against him until he was informed by counsel in this case. Plaintiff contends that
“because all grievances that are placed against staff are invest[i]gated according to correctional
law,” it is not possible that Defendants did not have knowledge of the grievance. (See Pl.’s
Response to Defs.’ Mot. in Reply Under Rule 56 for Summ. J. ¶ 1 (Dkt. No. 114).) But the fact
that Plaintiff’s grievance was investigated by some member of the corrections department does
nothing to prove that Dr. Zamilus, the named Defendant here, had actual knowledge of the
grievance at all, let alone while he was still treating Plaintiff. And there is nothing in the record
indicating the grievance was sent to Dr. Zamilus or that he was otherwise made aware of the
grievance. In the absence of such evidence, Plaintiff’s claim against Dr. Zamilus for retaliation
under the First Amendment rests only on his conclusory assertions that Dr. Zamilus acted
“spitefully.” (Compl. ¶ V.) The First Amendment retaliation claim against Dr. Zamilus thus
fails.
For the same reason, Plaintiff’s claim against Gaynor must fall. Gaynor, like Dr.
Zamilus, has said she was unaware of any grievance filed against her or Dr. Zamilus until
informed by counsel. (See Gaynor Decl. ¶ 2.) Again, that the grievance was investigated by the
corrections department proves nothing about Gaynor’s knowledge of the grievance, and there is
no credible or admissible evidence in the record suggesting that Gaynor knew of the grievance.
With respect to Murray, there is no question that Murray was aware of the grievance filed
against Dr. Zamilus and Gaynor, as she inspected Plaintiff’s left great toe at his grievance
hearing. (See Murray Decl. ¶ 2.) But Plaintiff never filed a grievance against Murray, and “[a]s
a general matter, it is difficult to establish one defendant’s retaliation for complaints against
22
another defendant.” Hare v. Hayden, No. 09-CV-3135, 2011 WL 1453789, at *4 (S.D.N.Y. Apr.
14, 2011); see also Wright, 554 F.3d at 274 (dismissing retaliation claim where “the only
individual defendants named in the . . . [c]omplaint were Goord, McDermott, and Dirie, none of
whom was alleged to have participated in th[e] [retaliatory] event”); Henson v. Gagnon, No. 13CV-590, 2015 WL 9809874, at *12 (N.D.N.Y. Dec. 10, 2015) (“The record is devoid of
evidence . . . that supports [the] [p]laintiff’s conclusory assertion that [the defendant] planted
evidence and issued the [m]isbehavior [r]eport based upon evidence in retaliation for grievances
[the] [p]laintiff had filed against other corrections officers.”), adopted by 2016 WL 204494
(N.D.N.Y. Jan. 15, 2016). Moreover, Plaintiff’s allegation that Dr. Zamilus instructed Murray
and Gaynor to withhold adequate medical care and accommodations is contradicted by the
record, (see Zamilus Decl. ¶ 10; Murray Decl. ¶ 6; Gaynor Decl. ¶ 5), and Plaintiff’s unsupported
assertions to the contrary, which are not based on first-hand knowledge, are insufficient to
overcome summary judgment, Berry, 137 F. Supp. 3d at 519 (“[A] pro se party’s bald assertion,
completely unsupported by evidence, is not sufficient to overcome a motion for summary
judgment.”). There being no evidence to establish a nexus between the grievance filed against
Dr. Zamilus and the allegedly retaliatory conduct of Murray, summary judgment is therefore
appropriate.
III. Conclusion
Because Plaintiff has adduced no credible, admissible evidence to support his First and
Eighth Amendment claims against Defendants related to any of the treatment identified in his
pleadings or moving papers, the Court declines to consider whether Plaintiff has exhausted all of
his administrative remedies or whether Defendants are entitled to qualified immunity.
23
For the foregoing reasons, the Motion is granted. The Clerk of the Court is respectfully
requested to terminate the pending Motion (Dkt. No. 92) and close the case.
SO ORDERED.
DATED:
September~, 20 16
White Plains, New York
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