Sutton v. Cerullo et al

Filing 137

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Edwin M. Kosik on 4/8/2016. (emksec, )

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

KELVIN SUTTON,
Plaintiff
v.
MARVA CERULLO, et al.,
Defendants

:
:
:
:
: CIVIL NO. 3:CV-10-1899
:
: (Judge Kosik)
:
:
MEMORANDUM

Plaintiff, Kelvin Sutton, filed this action alleging claims of the denial of
adequate medical care for a foot condition called “plantar fasciitis” in violation of 42
U.S.C. § 1983 and state professional malpractice law.1 Named as Defendants were
several employees at the State Correctional Institution at Mahanoy (SCI-Mahanoy),
Pennsylvania, Plaintiff’s place of confinement when the incidents occurred, as well as
medical professionals associated at the relevant time with Prison Health Services, Inc.
(“PHS”), a contract provider of healthcare services to correctional facilities including
SCI-Mahanoy. Following the resolution of motions to dismiss, the only remaining

Although Plaintiff refers to several exhibits in his complaint, none are
attached to the complaint.
1

Defendant is Nelson Iannuzzi, CRNP.2 Presently pending before the court is
Iannuzzi’s motion for summary judgment (Doc. 124). For the reasons that follow, the
motion will be granted.
I.

Background
On September 24, 2013, the court issued a Memorandum and Order granting in

part and denying in part a motion to dismiss filed by Defendant Iannuzzi.3 All claims
set forth against Iannuzzi occurring prior to September 10, 2008, were found to be
barred by the statute of limitations. The motion to dismiss was denied in all other
respects. As such, moving forward are the claims of August 26 and 28, 2009, when
Plaintiff claims Iannuzzi was deliberately indifferent and negligent to his plantar
fasciitis condition4. According to Plaintiff, he attended a medical appointment at SCIMahanoy on August 26, 2009, to exchange and receive new arch support insoles.
While there, Iannuzzi entered the room, questioned Plaintiff as to who authorized the
order for the new insoles, and told Plaintiff that he did not believe his insoles were

Throughout these proceedings, Defendant’s name has been spelled by the
parties as “Ianuzzi,” “Iannuzzi” and “Iannuzi.” For the sake of consistency, the court
will spell the name as “Iannuzzi” since this is the spelling used by Defendant when
signing his name in Plaintiff’s medical records and in filing his summary judgment
motion. (Docs. 72-1, 124.)
2

At this time, all claims set forth against Defendant Lisiak were also dismissed
from this action.
3

Plantar fasciitis is the irritation and/or swelling of the thick tissues on the
bottom of the feet.
4

2

worn out. Iannuzzi informed Plaintiff that he would have to wear the old insoles until
Iannuzzi authorized new ones. The second claim arose on August 28, 2009, when
Iannuzzi is alleged to have had a nurse confiscate and destroy the prescribed insoles.
Plaintiff alleges he was informed by the nurse that Iannuzzi had discontinued the use
of insoles.
II.

Summary Judgment Standard
Summary judgment is proper 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). In making this evaluation, the court must determine
“whether the pleadings, depositions, answers to interrogatories, admissions on file,
and affidavits show that there is no genuine issue of material fact and whether the
moving party is therefore entitled to judgment as a matter of law.” MacFarlan v. Ivy
Hill SNF, LLC, 675 F.3d 266, 271 (3d Cir. 2012)(citing Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986)).
When deciding the existence of a genuine dispute of material fact, the court will
award all reasonable inferences to the non-moving party. Meyer v. Riegel Products
Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983). However, “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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.

3

Ct. 2505, 2509-10, 91 L. Ed. 2d 202 (1986). “Material facts are those ‘that could affect
the outcome’ of the proceeding, and ‘a dispute about a material fact is genuine if the
evidence is sufficient to permit a reasonable jury to return a verdict for the nonmoving
party.’” Roth v. Norfalco, 651 F.3d 367, 373 (3d Cir. 2011)(citing Lamont v. New
Jersey, 637 F.3d 177, 181 (3d Cir. 2011)).
“[S]ummary judgment is essentially ‘put up or shut up’ time for the non-moving
party: the non-moving party must rebut the motion with facts in the record and cannot
rest solely on assertions made in the pleadings, legal memoranda, or oral argument.”
Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). The moving
party has the burden of showing the absence of a genuine issue of material fact, but the
nonmoving party must present affirmative evidence from which a jury might return a
verdict in the nonmoving party’s favor. Liberty Lobby, 477 U.S. at 256-57, 106 S. Ct.
at 2514. It is well-settled that: “[o]ne cannot create an issue of fact merely by ...
denying averments ... without producing any supporting evidence of the denials.”
Thimons v. PNC Bank, NA, 254 F. App’x 896, 899 (3d Cir. 2007)(citation omitted).
Thus, allegations made without evidentiary support may be disregarded. Jones v.
UPS, 214 F.3d 402, 407 (3d Cir. 2000).
III.

Statement of Undisputed Facts
In accordance with Pennsylvania Middle District Local Rule 56. 1, Defendant

filed a statement of undisputed material facts. (Doc. 126.) Although Plaintiff did not

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admit or deny these facts paragraph by paragraph as required by Rule 56.1, he did
attach to his brief in opposition to Defendant’s motion a document entitled “Plaintiff’s
Response In Opposition To Defendant’s Motion For Summary Judgement” (Doc. 131
at 7), wherein he appears to respond to Defendant’s stated facts, as well as set forth
additional facts. As such, the court will utilize this statement provided by Plaintiff to
the extent it is supported by the record.
In support of his statement of undisputed facts, Defendant submits his
declaration (Doc. 126-3), as well as the declarations of Gaye C. Gustitus, D.O. (Doc.
126-4), Amy Downer, Phlebotomist (Doc. 126-5), and K. Paul Flanigan, DPM,
podiatry expert. (Doc. 126-6.) These submissions have attached exhibits, including
Plaintiff’s medical records. Defendant also submits excerpts of Plaintiff’s deposition,
as well as the Certificate of Merit Plaintiff filed of record. (Doc. 126, Exhs. G-P.)
Although Plaintiff does not submit any documents, he appears to rely on those
submitted by Defendant.
The following facts are undisputed according to the submitted record. The only
remaining Defendant in this action is Iannuzzi. Iannuzzi is a Certified Registered
Nurse Practitioner (“CRNP”). (Doc. 126-3, Iannuzzi Decl. ¶ 1.) Two Eighth
Amendment claims and two state malpractice claims remain against Iannuzzi
stemming from incidents occurring on August 26, 2009 and August 28, 2009. In his
Certificate of Merit, Plaintiff states that expert testimony is not necessary to support

5

his negligence claims. (Docs. 27; 126-16, Ex. P, Pl.’s COM.)
On August 12, 2009, Plaintiff saw Dr. Gaye Gustitus in the SCI-Mahanoy
medical department and requested a renewal order for his arch support insoles. (Doc.
126-4, ¶8.) Gustitus is a family medicine physician who was providing “floating”
coverage on this date. (Id. at ¶4.) On this occasion, Gustitus noted that upon
examination, Plaintiff’s feet revealed only flat footedness, and were otherwise normal.
They were inconsistent with the existence of plantar fasciitis. The x-ray report was
reviewed and merely indicated mild degenerative joint disease and a historical
fracture. (Id. ¶¶10-12.)
On August 26, 2009, Plaintiff went to the medical department to obtain
replacement insoles pursuant to the renewal order he obtained from Dr. Gustitus on
August 12, 2009. (Doc. 126-3, ¶¶ 5-6.) Iannuzzi concluded that replacement insoles
were not yet necessary, and that Plaintiff’s insoles were only 4 months old, and not
worn out. (Id., ¶¶7, 8.) Plaintiff usually received new insoles after 6 months.
Iannuzzi wrote a progress note to this effect in Plaintiff’s medical record. (Doc. 126-3
at 13.) This is verified by Amy Downer, a Phlebotomist who was present on this
occasion. (Doc. 126-5, ¶¶ 9-11.) Downer verifies Iannuzzi’s statement that Plaintiff
became hostile when he was not provided with replacement insoles. (Doc. 126-5 ¶11;
Doc. 126-3 ¶11.) Plaintiff agrees that he was provided with new insoles
approximately 4 months ago (April 3, 2009), but states that said insoles were worn

6

out. (Doc. 126-7 at 3-5, Doc. 126-8 at 2-3,Pl.’s Dep.) Plaintiff admits that the arch
support insoles were not therapeutic for his foot complaints, and that despite wearing
the insoles, he was still experiencing pain. (Doc. 126-6 at 51.) Because of Iannuzzi,
Plaintiff did not receive replacement insoles on August 26, 2009.
On August 28, 2009, Defendant Iannuzzi discontinued Plaintiff’s insoles as
recently renewed by Dr. Gustitus. (Doc. 126-3 ¶16; p. 13.) After examining
Plaintiff’s insoles, he found that the existing insoles had no signs of delamination or
tears, retained their thickness, and were in good condition. (Id. ¶8.) After reviewing
Plaintiff’s medical records, Defendant determined that insoles were not therapeutic
and provided no arch support. He also determined that there existed no objective
evidence of any serious chronic foot condition. This was documented in a progress
note on said date. (Doc. 126-3 ¶¶ at 13.) Plaintiff believes the discontinuation was
done in violation of the Eighth Amendment because Iannuzzi is a CRNP, and he
terminated an order renewed by a doctor. As a CRNP, Iannuzzi is an independent
medical practitioner and has the authority to exercise his own medical judgment and
issue orders for medical devices, including those for podiatric conditions. (Id. ¶20.)
Iannuzzi can modify and change the orders of other providers. (Id.) Both Dr. Gustitus
and Defendant state that by routine practice, they would have discussed the situation
prior to Defendant discontinuing the renewal order, but neither has any specific
recollection of these details. (Id. ¶19; Doc. 126-4 at ¶26, Gustitus Decl.) Gustitus has

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offered an unsworn declaration stating that Iannuzzi had the authority to discontinue
the arch insoles, and that he agreed with what Iannuzzi did. (Gustitus Decl. ¶25.)
Plaintiff offers nothing to contradict or dispute any of the foregoing. Moreover,
Plaintiff admits that arch support insoles had not been therapeutic over the years, and
told Dr. Gustitus on August 12, 2009, that he was still experiencing pain despite the
use of insoles. (Pl.’s Dep., Doc. 126-10 at 2-3, Doc. 126-4 at 8, Doc. 126-9 at 3.) It is
also undisputed that an inmate cannot keep discontinued medical devices/items in his
possession. (Docs. 126-3 ¶22; 126-4 ¶27; Doc. 126-11.)
Although Plaintiff alleges that Defendant was “verbally abusive” when he
would not give Plaintiff replacement insoles (Doc. 126-7 at 5), Defendant has
submitted his own declaration, as well as the declaration of Amy Downer, stating that
Defendant was respectful to Plaintiff during the August 26, 2009 incident, and that it
was Plaintiff that was hostile and inappropriate. (Docs. 126-3 at ¶11; 126-5 ¶¶ 11,
12.) While Plaintiff disputes this in his deposition, it is verified by a progress note
written by Defendant on August 26, 2009 (Doc. 126-5 ¶13, Ex. 1), and the
declarations of Iannuzzi and Downer. It is also undisputed that at the time Plaintiff
was wearing the insoles, he had other therapeutic devices in place to relieve the
alleged pain in his feet, including moldable orthotics (non-custom), and the other
devices were counterproductive to Plaintiff’s alleged foot condition. Plaintiff did not
show any other devices to Dr. Gustitus when he saw him on August 12, 2009. (Docs.

8

126-3 ¶9; 126-4 ¶¶ 15-17.)
In his deposition, Plaintiff states that he was diagnosed with the condition of
plantar fasciitis when he was in prison, but offers nothing to support this diagnosis.
(Doc. 126-6 at 46, Pl.’s Dep.) A declaration is made by K. Paul Flanigan, DPM, a
practicing podiatrist since 2000, who reviewed all of the records in this case. Flanigan
found that although Plaintiff was diagnosed with pes planus (flat feet) in 2003, he had
no signs of plantar fasciitis. (Doc. 126-6 ¶¶1, 5-6.) While there is an entry on May 3,
2006 from Dr. Neill referencing plantar fasciitis (Doc. 126-6 at 26), there is no support
in the record that Plaintiff was suffering from plantar fasciitis at the relevant time.
On January 22, 2010, Plaintiff was provided with custom orthotics, and felt
immediate relief of his pain. (Doc. 126-3 ¶¶25-27; Doc. 126-12 at 2; Doc. 126-13 at
2.) Plaintiff walked approximately ten (10) miles per week for exercise in 2009, and
continued to walk the same distance and jog in 2014. He concedes that Iannuzzi’s
conduct did not cause him any ongoing injury or damage. (Doc. 126-15 at 4.)
IV.

Discussion
To sustain his claims under the Eighth Amendment, Plaintiff must plead facts

which:
[M]eet two requirements: (1) “the deprivation alleged must be, objectively,
sufficiently serious;” and (2) the “prison official must have a sufficiently
culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(quotation marks and citations omitted). In prison conditions cases, “that state
of mind is one of ‘deliberate indifference’ to inmate health or safety.” Id.
“Deliberate indifference” is a subjective standard under Farmer –the prison
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official–defendant must actually have known or been aware of the excessive
risk to inmate safety.
Beers Capitol v. Whetzel, 256 3d 120, 125 (3d Cir. 2001).
In the medical context, a constitutional violation under the Eighth Amendment
occurs only when state officials are deliberately indifferent to an inmate’s serious
medical needs. Estelle v. Gamble, 429 U.S. 97, 105 (1976). To establish a violation
of his constitutional right to adequate medical care in accordance with this standard,
an inmate is required to point to evidence that demonstrates (1) a serious medical
need, and (2) acts or omissions by prison officials that indicate deliberate indifference
to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
Deliberate indifference to a serious medical need involves the “unnecessary and
wanton infliction of pain.” Estelle, 429 U.S. at 104. Such indifference may be
evidenced by an intentional refusal to provide care, delayed provision of medical
treatment for non-medical reasons, denial of prescribed medical treatment, denial of
reasonable requests for treatment that results in suffering or risk of injury, Durmer v.
O’Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or “persistent conduct in the face of
resultant pain and risk of permanent injury.” White v. Napoleon, 897 F.2d 103, 109
(3d Cir. 1990).
However, it is also clear that the mere misdiagnosis of a condition or medical
need, or negligent treatment provided for a condition, is not actionable as an Eighth
Amendment claim because medical malpractice is not a constitutional violation.
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Estelle, 429 U.S. at 106. “Indeed, prison authorities are accorded considerable latitude
in the diagnosis and treatment of prisoners.” Durmer, 991 F.2d at 67 (citations
omitted). Furthermore, in a prison medical context, deliberate indifference is
generally not found when some significant level of medical care has been offered to
the inmate. Such complaints fail as constitutional claims under § 1983 since “the
exercise by a doctor of his professional judgment is never deliberate indifference. See,
e.g., Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990)(‘[A]s
long as a physician exercises professional judgment his behavior will not violate a
prisoner’s constitutional rights.’)”. Gindraw v. Dendler, 967 F. Supp. 833, 836 (E.D.
Pa. 1997). Applying this exacting standard, courts have frequently rejected Eighth
Amendment claims that are based upon the level of professional care than an inmate
received; see, e.g., Ham v. Greer, 269 F. App’x 149 (3d Cir. 2008); James v. Dep’t of
Corrections, 230 F. App’x 195 (3d Cir. 2007); Gillespie v. Hogan, 182 F. App’x 103
(3d Cir. 2006), particularly where it can be shown that significant medical services
were provided, but the prisoner is dissatisfied with the outcome of these services. Any
attempt to second-guess the propriety or adequacy of a particular course of treatment
is disavowed by courts since determinations remain a question of sound professional
judgment. See Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.
1979). In addition, merely because medical professionals do not agree on an inmate’s
treatment, this conduct does not rise to the level of an Eighth Amendment violation.

11

See Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), cert. denied, 450 U.S. 1041
(1981); Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir. 1996), cert. denied, 519 U.S.
1126 (1997).
A.

August 26, 2009 Incident

Based on the undisputed facts, Defendant Iannuzzi was not deliberately
indifferent when he did not give Plaintiff replacement insoles on August 26, 2009.
Even assuming the record was undisputed that Plaintiff was suffering from a serious
medical need, the record is also undisputed that the insoles were only 4 months old,
and that Plaintiff received new insoles approximately every 6 months. While Plaintiff
believed he was in need of new insoles at the time, the record is undisputed that
Defendant examined Plaintiff’s insoles and found them to be in good condition and
not ready to be replaced. As previously set forth, disagreement as to the condition of
the insoles between Plaintiff and the Defendant is not a basis for Eighth Amendment
liability. There is simply no evidence in the record that Iannuzzi acted with deliberate
indifference when he did not give Plaintiff the replacement insoles on August 26,
2009. As such, Defendant is entitled to summary judgment on this Eighth Amendment
claim.
B.

August 28, 2009 Incident

Plaintiff also claims that Defendant Iannuzzi violated his Eighth Amendment
rights on August 28, 2009, when Iannuzzi discontinued the insoles order. According

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to Plaintiff’s allegations, Dr. Gustitus renewed the insoles order on August 12,, 2009,
but Iannuzzi, a CRNP, discontinued the order on August 28, 2009. While it is true
that Defendant is a CRNP and discontinued the insoles order renewed by Dr. Gustitus,
the undisputed record also demonstrates that Iannuzzi was the medical personnel that
routinely addressed Plaintiff’s medical needs and that Gustitus was only serving as a
“floater” on the relevant date. Undisputed declarations were submitted establishing
that Gustitus had no idea what Plaintiff’s insole history was, that he was issued new
insoles four (4) months ago, that he usually received new insoles every six (6) months
and that he was using other devices at the same time as the insoles. Moreover, both
Defendant and Dr. Gustitus submitted declarations stating that routinely they would
discuss such a discontinuance by Iannuzzi, even though both were unable to recall the
details of such conversation. In addition, although Plaintiff asserts that Iannuzzi was
without authority to discontinue the order, Dr. Gustitus herself submits a declaration
establishing that Iannuzzi possessed such authority as a CRNP.
More importantly, even if an issue of fact exists as to whether Defendant
possessed the authority to terminate the insole renewal order, the record demonstrates
that Iannuzzi did not intentionally refuse to provide Plaintiff treatment or delay
necessary treatment, therefore he was not deliberately indifferent. Iannuzzi reviewed
the record, found the insoles to be medically unnecessary, and chose to await the
results of the orthotics consultation. He did not prevent Plaintiff from receiving

13

necessary treatment, and he did not persist in a course of treatment which resulted in
pain and permanent injury to Plaintiff. See generally Rouse, 182 F.d 192 (3d Cir.
1999). The record is undisputed that Iannuzzi did not discontinue the insoles without
first examining Plaintiff’s medical record, and determining that the renewed insoles
were not medically necessary. Plaintiff does not come forth with any evidence to
contradict any of the foregoing. The record is clear that Defendant did not
intentionally interfere with a prescribed medical treatment for the purpose of causing
harm. See Estelle, 429 U.S. 97 (1976). At best, Plaintiff alleges negligence which is
not actionable under the Eighth Amendment. Although Plaintiff may have wanted to
keep the insoles, this clearly is not a basis to find an Eighth Amendment violation on
Defendant’s part. See Brown v. Deparlos, 492 F. App’x 211, 2012 WL 2512014
(2012); Mattise v. Pa. Dep’t of Corrections, 2014 WL 2156746 (May 20,
2014)(Disagreement is not enough to establish an Eighth Amendment violation).
Rather, deference is owed to Iannuzzi who was treating Plaintiff at SCI-Mahanoy.
Summary judgment on this Eighth Amendment claim is also warranted in favor of
Defendant Iannuzzi.
C.

Negligence Claims

The court further finds that Defendant is entitled to summary judgment with
respect to any negligence claim brought by Plaintiff. It is undisputed that Plaintiff
filed a Certificate of Merit stating that expert testimony was not necessary in this case.

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As such, he is now precluded from doing so. See Pa.R.C.P. 1042.3(a). It is well
established that in order to prove a prima facie cause of action for medical
professional liability, a plaintiff must establish the following: (1) a duty owed by the
physician to the patient; (2) breach of that duty; (3) the breach of duty was the
proximate cause of, or a substantial factor in, bringing about the harm suffered by the
patient, and (4) the damages suffered by the patient were a direct result of that harm.
Thomas v. United States, 558 F.Supp.2d 553 (M.D. Pa. 2008); Mitzfelt v. Kamrin, 584
A.2d 888, 892 (Pa. 1990).
There is a very narrow exception to the expert testimony requirement for
medical malpractice under Pennsylvania law which applies when the matter is so
simple or the lack of skill so obvious as to be within the range of experience and
comprehension of even non-professional persons. See Brown v. Hahnemann
University Hosp., 20 F.Supp.3d 538 (2014). The general rule in Pennsylvania is that
expert testimony is required in order for a plaintiff to establish the elements of a prima
facie case of medical negligence. Thus, in almost all cases, a plaintiff must produce
expert testimony to aid the jury in reaching a conclusion as to the cause of the inmate’s
pain/injury. See McCool v. Dep’t of Corrections, 984 A.2d 565 (Pa. Commw. 2009).
Expert testimony is not required to be presented where the cause of the pain is obvious
to a layperson.
In the instant case, Plaintiff has filed a Certificate of Merit on the record stating

15

that he is not required to produce an expert in this case. However, Plaintiff is
mistaken, and Defendant is entitled to summary judgment on any negligence claim
brought by Plaintiff due to his failure to submit expert testimony. Plaintiff is required
to present medical expert testimony to establish that his care and treatment by
Defendant Iannuzzi fell short of the required standard of care and that the alleged
breach by Iannuzzi proximately caused his injury. See Toogood v. Owen J. Rogal,
D.D.S., P.C., 573 Pa. 245, 824 A.2d 1140 (Pa. 2003). The “foot pain” and foot
condition of Plaintiff is not within the ordinary knowledge of the jury, and Plaintiff
must produce a medical expert to determine any causation on the part of Iannuzzi.
Plaintiff has failed to do so.
Further, in moving for summary judgment, Iannuzzi has presented the
declaration of Dr. K. Paul Flanigan, DPM.(Doc. 126-6.) Dr. Flanigan is a podiatrist
and has been in practice since 2000. Flanigan’s curriculum vitae is attached to his
statement and has not been challenged by Plaintiff. (Id. at 14.) Flanigan reviewed the
records in this case and testified that objective signs of plantar fasciitis were absent,
and that pes planus was present in the left foot. Flanigan also stated that Iannuzzi
properly concluded that new insoles were not indicated on August 26, 2009. (Id. ¶25.)
In reviewing the records, Flanigan found that Iannuzzi documented in detail why new
insoles were not yet needed by Plaintiff on said date, and that the record supported the
behavior of the parties as described by Defendant, not Plaintiff, and as supported by a

16

witness statement. (Id. ¶26.)
Defendant also offered the statement of Dr. Flanigan with respect to the August
28, 2009 incident. Again, no countervailing statement by an expert has been offered
by Plaintiff with respect to the foot condition from which he states he suffered and
with respect to the actions of Defendant Iannuzzi in response to his condition.
Flanigan stated that Iannuzzi discontinued the renewed insole order after further
review of Plaintiff’s medical records, and the determination that insoles were not even
medically necessary. (Id. ¶27.) Even Plaintiff had agreed that the insoles were not
therapeutic. Flanigan found that Iannuzzi accordingly discontinued the insoles and
awaited a report from the custom orthotics consultation. (Id. ¶¶28, 29.) The record
verifies that when Plaintiff was fitted with the custom orthotics, he was satisfied. (Id.
¶33.) Based on the foregoing, summary judgment will be granted to Defendant with
respect to any state negligence claim he seeks to bring in this action. An appropriate
order follows.

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