SHIRA SCHEINDLIN, District Judge
I. INTRODUCTION
On January 24, 2001, Horace Abney brought this action under 42 U.S.C. section 1983 against New York State Department of Correctional Services employees John McGinnis, Dr. Mario Malvarosa, Paul Wilson, and Anne Eckert (collectively, the "DOCS defendants") and Michael DiPompo, a private orthotics specialist. Plaintiff alleges that all of the defendants acted with deliberate disregard for his medical needs in violation of his Eighth Amendment rights. Defendants now move separately for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, summary judgment is granted as to all defendants.
The complaint misidentifies defendant Anne Eckert as Ann Arckert. DOCS Defendants' Local Rule 56.1 Statement of Material Facts Which Are Not in Dispute ("DOCS 56.1") ¶ 6.
II. BACKGROUND
The facts summarized in this section are undisputed unless otherwise noted.
Plaintiff arrived at Downstate Correctional Facility ("Downstate") on May 26, 1999. Plaintiff has a number of problems with his feet, including hammer toes, bunions, collapsed arches, unerect heels, and laterally drifted big toes. Previously, in 1992, plaintiff had undergone a bilateral bunionectomy and chevron osteotomy while incarcerated. While on parole from 1996 to 1999, plaintiff wore store-bought shoes with arch support inserts.
See DOCS 56.1 ¶ 12.
See id. ¶ 9.
See id. ¶ 10.
See id. ¶ 11.
When plaintiff arrived at Downstate, he was permitted to wear shoes with off-the-shelf inserts. Dr. Malvarosa, a medical doctor at Downstate, issued plaintiff a thirty-day pass for the shoes the day after he arrived, which he renewed on June 14, 1999. That same day, Dr. Marvarosa recommended that plaintiff see a specialist for orthopedic footwear. Two weeks later, when plaintiff complained to Dr. Malvarosa that he needed new arch supports, Dr. Malvarosa had plaintiff fitted for a new pair of sneakers with non-custom arch supports.
See id.
See id. ¶¶ 12, 14.
See id. ¶ 14.
See id. ¶ 17.
On July 10, 1999, plaintiff complained that he had not yet seen a shoe specialist. Plaintiff filed a grievance with regard to this complaint on July 12, 1999. McGinnis issued a decision on July 27, 1999, requiring that plaintiff be scheduled for a podiatry appointment. However, DiPompo had visited plaintiff the day before McGinnis issued the grievance decision.
See id. ¶ 18.
See id. ¶ 20.
See id.
See id. ¶ 23.
DiPompo first examined plaintiff on July 26, 1999. DiPompo fabricates and fits custom-made orthotics, orthosis, and prosthetics under a doctor's prescription. He is not a physician, but rather a certified prosthetist/orthotist. He determined that plaintiff needed diagnostic casting for custom-made orthoses. During the next twenty months, DiPompo saw plaintiff thirteen times, refitting and reconstructing shoes and orthoses for plaintiff.
See DiPompo's Local Rule 56.1 Statement ("DiPompo's 56.1") ¶ 18.
See DOCS 56.1 ¶ 7.
See DiPompo 56.1 ¶ 6.
See id. ¶ 19.
See id. ¶¶ 18, 20-21, 26-27, 33, 36, 39, 43, 44, 53, 58.
During his entire time at Downstate, plaintiff continuously complained — both formally at sick call and informally — of pain in his ankles, knees, and back, as well as of pain resulting from wearing the boots DiPompo had customized for him. Additionally, plaintiff filed four grievances, all of which were related to delays in treatment. In response to his third grievance, the Grievance Committee recommended a speedy remedy to the problem. McGinnis responded that Downstate was waiting to receive footwear from DiPompo, but that he personally had never checked on the status of the footwear.
See, e.g., DOCS 56.1 ¶¶ 24, 42, 46, 59, 67, 78, 80, 83. See also Examination Before Trial of Defendant, Dr. Mario Malvarosa at 29-30, Ex. B of Plaintiff's Memorandum of Law in Opposition to Defendants' Motions for Summary Judgment ("Pl. Mem.").
See DOCS 56.1 ¶¶ 20, 49, 55, 70.
See id ¶ 57.
See id. See also Pl. Mem. at 15.
On July 9, 2001, Dr. Malvarosa requested an appointment for plaintiff with an orthotics specialist at Green Haven Correctional Facility ("Green Haven"). Plaintiff saw a Green Haven orthotics specialist on August 16, 2001, who recommended that plaintiff be fitted for orthotics and boots. Plaintiff was transferred to Eastern Correctional Facility ("Eastern") sometime in the fall of 2001. Plaintiff asserts that, after his transfer, a Green Haven orthotics specialist told him that the arch supports he was using were defective and that he understood why plaintiff was in pain.
See DOCS 56.1 ¶ 79.
See id. ¶ 82.
See id. ¶ 84.
See Declaration of Horace Abney ("Abney Decl.") ¶ 15.
II. LEGAL STANDARD
A. Summary Judgment
Summary judgment is appropriate if the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." An issue of fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material when it "`might affect the outcome of the suit under the governing law.'"
Fed.R.Civ.P. 56(c).
Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (quoting Stuart v. American Cyanamid Co., 158 F.3d 622, 626 (2d Cir. 1998)).
Bouboulis v. Transport. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)).
The movant has the burden of demonstrating that no genuine issue of material fact exists. In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact that does "`not rely on conclusory allegations or unsubstantiated speculation.'" To do so, the non-moving party must do more than show that there is a "`metaphysical doubt as to the material facts.'" In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw an justiable merences in that parti's favor.
See, e.g., Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)).
Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (quoting Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir. 2002)).
McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
See id.
B. Constitutional Standard: The Eighth Amendment
The Eighth Amendment prohibits the infliction of cruel and unusual punishment. The Eighth Amendment "imposes a duty on prison officials to ensure that inmates receive adequate medical care." To establish an Eighth Amendment violation arising out of the denial of medical care, a plaintiff must prove that defendants were deliberately indifferent to his serious medical needs. The deliberate indifference standard contains both an objective and subjective prong. Under the objective prong, an inmate must prove "that the deprivation alleged is `objectively sufficiently serious' such that plaintiff was denied `the minimal civilized measure of life's necessities.'" This includes "`not only deprivations of medical care that produce physical torture and lingering death, but also less serious denials which cause or perpetuate pain.'" The condition, however, must be one of urgency that may produce death, degeneration, or extreme pain." The subjective prong requires a showing that defendant "possessed a `sufficiently culpable state of mind.'" The level of culpability must be something "more than negligence, but less than conduct undertaken for the very purpose of causing harm." Plaintiff must allege facts sufficient to satisfy both prongs of the standard.
See Wilson v. Seiter, 501 U.S. 294, 296-97 (1991).
Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006).
See Trammell v. Keane, 338 F.3d 155, 161-62 (2d Cir. 2003).
See Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Trammell, 338 F.3d at 162 (quoting Farmer, 511 U.S. at 834).
Brock v. Wright, 315 F.3d 158, 163 (2d Cir. 2003) (quoting Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977)). See also Brady v. Griffith, No. 95 Civ. 2364, 1998 WL 8146, at *3 (S.D.N.Y. Nov. 23, 1998).
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)
Trammell, 338 F.3d at 162 (quoting Farmer, 511 U.S. at 837).
Hathaway, 37 F.3d at 66.
IV. DISCUSSION
The facts presented, when liberally construed in a light most favorable to the plaintiff, do not meet either the objective or subjective prong of the deliberate indifference test. Therefore, summary judgment for all defendants is appropriate.
A. There Is No Genuine Issue of Material Fact in Dispute as to Whether Plaintiff's Foot Condition Meets the "Sufficiently Serious" Test
The undisputed facts indicate that plaintiff's condition did not meet the sufficiently serious prong of the deliberate indifference test. Plaintiff states that he was constantly in pain due to his foot condition and that this pain affected his knees and back, but he does not dispute that he played basketball, at least occasionally, and lifted weights while incarcerated. A failure to treat a chronic condition could fit into the category of "`less serious denials which cause or perpetuate pain.'" However, this Court already has found that foot conditions similar to plaintiff's condition did not meet the objective prong of the deliberate indifference standard. Plaintiff's condition, while painful, was not "one of urgency that may produce death, degeneration, or extreme pain." Because plaintiff fails to meet the first prong of the deliberate indifference standard, his Eighth Amendment claim cannot survive summary judgment.
See, e.g., DOCS 56.1 ¶¶ 16 (all of which plaintiff admits except the second sentence), 50; Abney Decl. at ¶ 5 (stating that he "played baseball and basketball occasionally" although he usually was in too much pain to do so).
Brock, 315 F.3d at 163 (quoting Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977)).
See, e.g., Brown v. Defrank, No. 06 Civ. 2235, 2006 WL 3313821, at *21 (S.D.N.Y. Nov. 15, 2006) (finding pain from bunions not sufficiently serious); Hernandez v. Goord, No. 02 Civ. 1704, 2006 WL 2109432, at *1, 5-6 (S.D.N.Y. July 28, 2006) (finding painful hammertoe with an overlap did not meet objective prong of the deliberate indifference standard); Veloz v. New York, 35 F. Supp. 2d 305, 312 (S.D.N.Y. 1999) (holding plaintiff's fracture, bone cyst, and degenerative arthritis in left toe not a sufficiently serious medical condition).
Hathaway, 37 F.3d at 66.
B. There Is No Genuine Issue of Material Fact in Dispute as to Whether Defendants Acted with Deliberate Indifference
Even if a reasonable jury could find plaintiff's medical condition sufficiently serious, plaintiff has failed to allege facts demonstrating deliberate indifference on the part of the defendants. Because defendants' actions constituted negligence at most, summary judgment alternatively is granted on the second prong of the deliberate indifference standard for all defendants.
1. Defendant DiPompo
The undisputed facts show DiPompo was not deliberately indifferent to plaintiff's medical needs. DiPompo met with plaintiff thirteen times from July 26, 1999 to March 30, 2001. While plaintiff contends that the boots DiPompo made for him did not meet his needs, plaintiff was satisfied with the first pair of sneakers DiPompo made for him. The undisputed facts show that DiPompo attempted to address plaintiff's complaints by refitting and reforming the orthoses. Additionally, while there were time lags between DiPompo's visits to plaintiff and between plaintiff's request for a visit from DiPompo and DiPompo's subsequent visit, no evidence suggests an intentional delay that could support a claim of deliberate indifference.
See DOCS 56.1 ¶ 28.
See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).
2. DOCS Defendants
Additionally, plaintiff has presented no evidence of deliberate indifference on the part of the DOCS defendants. In response to the summary judgment motion, plaintiff asserts that the treatment provided constituted "an abundance of ineffective care." Indeed, plaintiff consistently received medical attention to address his foot condition. In cases where ineffective care has constituted deliberate indifference, defendants had failed to recommend or carry out a course of treatment that was plainly required. Otherwise, determinations of what constitutes appropriate treatment are within the medical judgment of the treating doctors and do not implicate the Eighth Amendment. Here, plaintiff does not allege that defendants failed to provide an obvious alternative course of treatment. Additionally, the effectiveness of the treatment provided to plaintiff can be measured in large part only by plaintiff's subjective opinion of the fit and comfort of the sneakers and boots provided. Not only did plaintiff find the first pair of sneakers satisfactory, he also requested receipt of the shoes from DiPompo through the time of his final grievance. While such a request does not indicate that the course of treatment was the most effective, it does rebut a claim that defendants provided wholly ineffective treatment. Finally, the undisputed facts show that Dr. Malvarosa attempted to find an alternative course of treatment for plaintiff by recommending that he see another specialist. But plaintiff was transferred from Downstate to Eastern before the results of the visit could be implemented. Therefore, there is no proof that the DOCS defendants acted with deliberate indifference.
Pl. Mem. at 11.
See, e.g., Hathaway, 37 F.3d at 67 (finding that a failure to inform an inmate of two broken pins in his hip that needed to be removed surgically could support a claim for deliberate indifference); Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974) (finding that a failure to attempt to reattach an inmate's ear could support a claim for deliberate indifference); Thomas v. Arevalo, No. 95 Civ. 4704, 1998 WL 427623, at *8 (S.D.N.Y. July 28, 1998) (finding that a failure to recommend retinal reattachment surgery once symptoms of retinal detachment presented, and a delay of thirteen days in scheduling the surgery, presented facts sufficient to survive summary judgment with regard to deliberate indifference).
See Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) ("It is well-established that mere disagreement over the proper treatment does not create a constitutional claim.").
Because defendants are entitled to summary judgment, there is no need to address the issues of qualified immunity or of personal involvement by McGinnis. Were I to address the question of qualified immunity, however, it is clear that DOCS defendants would be entitled to qualified immunity as it was surely not well-established that their actions rose to the level of deliberate indifference. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (noting that the right violated must be "clearly established").
VI. CONCLUSION
For the foregoing reasons, summary judgement is granted in defendants' favor and this case is dismissed. The Clerk of the Court is directed to close these motions (Nos. 71 and 73 on the Docket Sheet) and this case.