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June 9, 2005.

MARK A. SMITH, Plaintiff,
DR. JOHN ALVES, M.D., Defendant.

The opinion of the court was delivered by: LESLIE FOSCHIO, Magistrate Judge



The parties have consented to proceed before the undersigned pursuant to 28 U.S.C. § 636(c). The matter is before the court on the Defendant's motion, dated June 28, 2004, for summary judgment (Docket No. 37).


  Plaintiff commenced this § 1983 action on April, 21, 2003, claiming a violation of the Eighth and Fourteenth Amendments for alleged deliberate indifference to his medical needs (Docket No. 1). On May 3, 2003, Plaintiff was granted in forma pauperis status, however, his request for assigned counsel was denied (Docket No. 4). Additionally, Plaintiff's equal protection claim and a claim against another physician were dismissed. On June 4, 2003, Defendant filed an Answer to the Complaint (Docket No. 6). Defendant moved for summary judgment on June 28, 2004, arguing that Plaintiff has not established a sufficiently serious injury and that Defendant is shielded by qualified immunity (Docket No. 37).

  Plaintiff filed a response to the motion on August 26, 2004 (Docket Nos. 43-45). Oral argument was deemed unnecessary. For the following reasons, Defendant's motion for summary judgment is GRANTED.


  At the time of the alleged deprivation, Plaintiff was an inmate in the custody of the New York State Department of Correctional Services incarcerated at the Southport Correctional Facility. Plaintiff was diagnosed with a herniated disk in his lower back, and was treated with pain medication, anti-inflammatory medications, electronic stimulation and physical therapy. Plaintiff alleges that Defendant terminated his physical therapy sessions in deliberate indifference to Plaintiff's medical needs.

  In support of the motion for summary judgment, Defendant submitted a declaration in which Defendant summarized Plaintiff's medical care while Plaintiff was housed at Southport (Docket No. 38).*fn2 Plaintiff suffers from a herniated disk in his lower back which was diagnosed in April 1999 (Docket No. 38, ¶ 5). While at Southport, his back condition was treated with pain medication, anti-inflammatory medication, physical therapy, transcutaneous electrical nerve stimulation (TENS), a double mattress and home exercise. Id. Plaintiff had diagnostic X-rays, including an MRI, and was seen by outside specialists, including a neurosurgeon. Id., ¶ 7.

  In September 2002, Plaintiff was prescribed a physical therapy regime (Docket No. 38, ¶ 8). Plaintiff attended the sessions on September 9, 18, and 26, and October 1, and 4, 2002. Id., ¶ 9. On October 9, 2002, Plaintiff was involved in a physical altercation with corrections officers, and therefore did not attend physical therapy on October 7, 14, and 16, 2002, stating that he was physically unable. Id., ¶¶ 10-11. On October 17, 2002, a facility nurse attempted to speak with Plaintiff regarding the missed sessions, but Plaintiff was uncooperative. Id., ¶ 13. Because Plaintiff had missed five of twelve scheduled sessions, including September 16, and 23, 2002, Defendant cancelled Plaintiff's physical therapy. Id.

  On October 25, 2002, Plaintiff was examined by a nurse practitioner. Plaintiff was prescribed a different pain medication and was advised to continue with his exercise program. Id., ¶ 16. Plaintiff was familiar with the exercises as indicated in the notes of his physical therapy sessions. Id., Exh. A. On November 27, 2002, Plaintiff filed a grievance seeking to have his physical therapy reinstated. At that time, Defendant determined that physical therapy was not medically necessary. Id., ¶ 20. On December 31, 2002, Plaintiff requested and was prescribed a stronger pain medication. Id., ¶ 20. On January 28, 2003, Defendant referred Plaintiff to a neurosurgeon for further evaluation and recommendation for further treatment. Id., ¶ 24. Between January and June 2003, Plaintiff continued to take medication for his pain, including Tylenol with codeine and Darvocet. Id., ¶¶ 25-27, 31, 36. On March 24, 2003, Plaintiff requested a TENS unit and a double mattress. Id., ¶ 29. Plaintiff was seen by the neurosurgeon on June 18, 2003. The specialist diagnosed lower back pain and paresthesia of the left leg, but Plaintiff indicated he was not interested in surgery. Id., ¶ 37.

  On June 22, 2003, Defendant ordered additional spinal x-rays and an MRI. Id., ¶ 38. The MRI of July 17, 2003 indicated "left lateral HNP ("herniated nucleus pulposus" or herniated disk) abutting and slightly deviating the proximal left L3 spinal nerve, and L5-S1 posterior disk bulge barely abutting the ventral margins of the S1 nerve roots" without displacement. Id., ¶ 40. No other abnormalities were noted. Plaintiff continued to take medication for the back pain. Id., ¶¶ 41, 48. On October 1, 2003, Plaintiff was again sent to the Neurosurgery Clinic for a follow-up visit, however, the neurosurgeon made no new recommendations. Id., ¶ 47.

  On October 7, 2003, Plaintiff was involved in another altercation with corrections officers, after which he again complained of back pain. Id., ¶ 49. On October 20, 2003, Plaintiff complained of severe back pain and was seen by a nurse, who advised bed rest and Flexaril, 10 mg., three times daily. Id., ¶ 51. In November 2003, Plaintiff requested an increase in the dosage of Darvocet, but the medical staff saw no apparent reason for increasing the dosage and therefore denied Plaintiff's request. Id., ¶ 55.

  On November 25, 2003, Defendant ordered physical therapy and a plan was devised for twice weekly sessions. Id., ¶ 56. Defendant stated that ongoing physical therapy for a chronic condition is not considered an "emergent medical need." Id., ¶ 57. During the year between the cancellation and resumption of Plaintiff's physical therapy regime, Plaintiff was treated with medication, referred to outside ...

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