The opinion of the court was delivered by: Gerard E. Lynch, District Judge
In this action under 42 U.S.C. § 1983, plaintiff Kelvit Burgess, a prisoner who, at the relevant times, was incarcerated at New York's Mid-Orange Correctional Facility ("Mid-Orange"), alleges that defendants Henry Garvin, Dr. Herbert Goulding, and Nurse Barbara Williams violated his rights under the Americans with Disabilities Act ("ADA") and the Eighth Amendment's proscription of cruel and unusual punishment, by failing to adequately treat, and provide reasonable accommodations on account of, the pain in his knee due to Blount's disease. Defendants have moved for summary judgment. The motion will be granted.
Burgess suffers from Blount's disease, a degenerative condition of the tibia. During childhood, he had five operations on his knee aimed at straightening his legs; pins were also [ Page 2]
implanted into the bone as he grew. (Burgess Tr. 18-19.) However, the deterioration in his knees is progressive, and walking long distances, carrying heavy loads, or climbing stairs can be painful. (Id. 23-24. When he was transferred to Mid-Orange on September 20, 2001, he felt his knee condition was "manageable." (Id. 38.) However, he claims that because he needed to walk long distances, sometimes through bad weather, to the cafeteria, and at times had to stand in long lines outside, the condition deteriorated. He sought, by filing a grievance, to be moved closer to the cafeteria or to be provided his meals in his cell, accommodations that had been provided him at Woodburn Correctional Facility three to four years earlier. (Id. 32.) He also sought medical attention. (Id.; Goulding Aff. ¶ 23; Tennant Decl. Ex. I.)
According to prison medical records, Burgess was examined by defendant Dr. Herbert E. Goulding on September 28, 2001. Goulding felt that Burgess "did not meet the criteria for [an] accommodation," partly because the accommodations requested were not available at Mid — Orange. (Goulding Aff. ¶ 26.) He issued permits for Burgess to be given a bottom bunk, to be permitted the use of a cane, and to be limited to "minimal weight lifting." (Id. ¶¶ 8, 27; Tennant Decl. Ex. F at 32.) He also ordered another examination for one to two weeks later, but he did not actually see Goulding again until October 25. At that time, Goulding ordered an X-ray and recommended that Burgess be moved closer to the mess hall. (Goulding Aff. ¶¶ 10-11; Tennant Decl. Ex. N.) After viewing the X-rays and examining Burgess on November 14, Goulding ordered that Burgess see "an orthopedic consultant" and recommended that he be placed in "a situation where he would not have to climb stairs and be involved in activities that would further aggravate his condition." (Goulding Aff. ¶¶ 13-14; Tennant Decl. Ex. F at 28.) At all relevant times, Burgess has been provided with the painkiller Naprosyn. (Id. 27.) In early December, [ Page 3]
Burgess was transferred to Marcy Correctional Facility for medical reasons. (Id. Ex. G.)
Burgess complains that Goulding was "totally indifferent" at his first examination in that the doctor simply "glanced at" his knee "without even actually holding the leg or feeling around the knee to see if anything was out of place," did not look at his medical records, and "brushed . . . off" his request to see an orthopedist. (Burgess Tr. 43-44, 58; see also id. at 61 (describing Goulding as "very indifferent" and complaining that he just does "a lot of writing").) He disagreed with Goulding's diagnosis that he was experiencing "phantom pains" and believes that Goulding later ordered the X-rays only because of the grievances Burgess had filed against him following the first examination. (Id. 27-29, 42.) Burgess believes that had he been seen by an orthopedist, he "would have probably been [given] passes not to be walking in the snow and to receive . . . bed rest" and therefore "wouldn't have [had] to suffer the pain that I have suffered." (Id. 44-45.)
Burgess alleges that Nurse Williams, who was responsible for investigating his grievance, was indifferent in that she apparently "never once read through [his] folders" since "she made the exact comment that Dr. Goulding made" in her response to his grievance. (Id. 63.) He alleges that Superintendent Garvin was aware of his condition "due to the grievance," and that "instead of . . . fully investigating the matter, he just went on the word of Dr. Goulding," and "failed to move [him] closer to the infirmary or closer to the mess hall." (Id. 59-60.)
Burgess claims that the failure to provide him the requested accommodations, along with certain deficiencies in the shower and toilet facilities, violated the ADA. (Burgess Tr. 64-65; Tennant Decl. Ex. I.) He also claims that the fact that he had to "walk in the rain and in the snow just to go get a meal . . . regardless [of the] pain," due to Goulding's initial determination that no [ Page 4]
accommodations were called for, and the other defendants' acquiescence in that finding, constituted cruel and unusual punishment. (Id. 64-65, 67.)
I. Summary Judgment Standard
When adjudicating a motion for summary judgment, all ambiguities must be resolved in favor of the nonmoving party, although "the nonmoving party may not rely on conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996). Summary judgment is then appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together ...