The opinion of the court was delivered by: Hurd, District Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiff Jose Nunez ("Nunez" or "plaintiff") brings this
action pursuant to 42 U.S.C. § 1983, alleging that defendant Dr.
Christopher Horn ("Dr. Horn" or "defendant") violated his Eighth
Amendment rights in connection with medical treatment plaintiff
received while an inmate at Ray Brook Federal Correctional
Facility ("Ray Brook"). Defendant has moved for summary judgment.
In 1989, three years prior to his incarceration, plaintiff
fractured his left elbow when he fell from a horse. Plaintiff did
not receive treatment for this injury and his elbow healed
abnormally as a result. After arriving at Ray Brook in 1992,
plaintiff was examined by the defendant, an orthopedic surgeon
who provides medical services to inmates referred by physicians
employed by the Federal Bureau of Prisons. While plaintiff had
limited range of motion, he had functional use of his left elbow
and reported only mild pain. Dr. Horn initially treated Nunez
Plaintiff increasingly complained of pain, crepitus, and
locking. X-rays indicated a possible loose body or bone chip in
the elbow. Dr. Horn sought and received permission to perform
arthroscopic surgery in order to attempt to alleviate the pain,
crepitus, and locking that Nunez was experiencing. On August 4,
1993, defendant performed the surgery at Alice Hyde Hospital in
Malone, New York. He found no loose body or bone chip, but
removed synovial and scar tissue. Dr. Horn observed, but did not
remove, a bony block which prevented plaintiff from having full
range of motion in his elbow. After the surgery, plaintiff's
range of motion remained approximately the same, but he
experienced less pain.
Plaintiff commenced this action, contending that Dr. Horn's
failure to remove the bony block from his left elbow and failure
to provide proper pain medication violated his Constitutional
rights under the Eighth Amendment.
A. Summary Judgment Standard
Summary judgment must be granted when the pleadings,
depositions, answers to interrogatories, admissions, and
affidavits show that there is no genuine issue as to any material
fact, and that the moving party is entitled to summary judgment
as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986);
Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir.
1991). The moving party carries the initial burden of
demonstrating an absence of a genuine issue of material fact.
Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Thompson v. Gjivoje,
896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and
ambiguities must be viewed in a light most favorable to the
nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986);
Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983).
When the moving party has met the burden, the non-moving party
"must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita Elec. Indus. Co.,
475 U.S. at 586, 106 S.Ct. 1348. At that point, the non-moving
party "must set forth specific facts showing that there is a
genuine issue for trial." Fed.R.Civ.P. 56: Liberty Lobby Inc.,
477 U.S. at 250, 106 S.Ct. 2505; Matsushita Elec. Indus. Co.,
475 U.S. at 587, 106 S.Ct. 1348. To withstand a summary judgment
motion, evidence must exist upon which a reasonable jury could
return a verdict for the nonmovant. Liberty Lobby, Inc., 477
U.S. at 248-249, 106 S.Ct. 2505; Matsushita Elec. Indus. Co.,
475 U.S. at 587, 106 S.Ct. 1348. Thus, summary judgment is proper
where there is "little or no evidence . . . in support of the
non-moving party's case." Gallo v. Prudential Residential
Servs., 22 F.3d 1219, 1223-1224 (2d Cir. 1994) (citations
B. Whether Defendant Acted Under Color of State Law
"[I]n any § 1983 action the initial inquiry must focus on . . .
(1) whether the conduct complained of was committed by a person
acting under color of state law; and (2) whether this conduct
deprived a person
of the rights, privileges, or immunities secured by the
Constitution or laws of the United States." Parratt v. Taylor,
451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981),
overruled on other grounds by Daniels v. Williams,
474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); West v. Atkins,
487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Bryant v.
Maffucci, 923 F.2d 979, 982-83 (2d Cir.), cert. denied,
502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991). Therefore, in
order to prevail on his motion, the defendant must prove either
that he did not deprive plaintiff of a federal statutory or
Constitutional right by his actions, or that, notwithstanding his
alleged actions, he did not act under color of state law.
In order to act under color of state law, a person must have
exercised power "possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority
of state law." Polk County v. Dodson, 454 U.S. 312, 317-18, 102
S.Ct. 445, 70 L.Ed.2d 509 (1981) (quoting United States v.
Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368
(1941)). Similarly, as is the case in the context of the
Fourteenth Amendment's state action requirement, a deprivation of
a federal or constitutional right is actionable pursuant to §
1983 when the deprivation was caused "by the exercise of some
right or privilege ...