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JOSEPH v. SUPPLE

October 11, 2005.

GEORGE JOSEPH, Plaintiff,
v.
DR. J. SUPPLE, M.D., DR. C.F. KURTZ, M.D., DR. WRIGHT, M.D., Defendants.



The opinion of the court was delivered by: MIRIAM CEDARBAUM, Senior District Judge

OPINION

George Joseph, proceeding pro se, brought this action while a state prisoner against three physicians employed by the New York State Department of Correctional Facilities. Plaintiff sues under 42 U.S.C. § 1983 for failure to provide speech therapy following his throat operation on May 16, 1995. By letter dated September 1, 1998, plaintiff requested that Dr. Wright be withdrawn as a defendant from the case. On February 25, 2000, Drs. Supple and Kurtz ("defendants") moved for summary judgment dismissing the Amended Complaint pursuant to Fed.R.Civ.P. 56. Defendants served plaintiff with the motion accompanied by the notice required by the Second Circuit, including a statement that plaintiff's claims could be dismissed without a trial if he failed to respond. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Plaintiff has not responded, despite that notice and despite having been directed on three separate occasions to do so. For the reasons that follow, defendants' motion is granted.

  BACKGROUND

  I. Procedural History

  In order to ready this case for trial, the parties were initially directed by letter dated May 26, 1999 to submit a written narrative statement of the facts to be proven and witnesses and documents to be presented at trial. Defendants thereafter indicated their intention to move for summary judgment, and on February 7, 2000 I directed them to serve their motion papers by no later than February 25, 2000. Plaintiff was in turn directed on March 28, 2000 and again on October 25, 2000 to respond to the motion, and was each time advised that failure to respond would result in the motion being treated as unopposed. Nevertheless, plaintiff did not respond by the required dates. On March 21, 2002, both plaintiff and defendants were directed to show cause why the action should not be dismissed without prejudice in light of the Supreme Court's February 26, 2002 decision in Porter v. Nussle, 534 U.S. 516 (2002). Rather than respond, plaintiff made multiple requests to stay the action until his scheduled release from prison in November 2002. Plaintiff's request was granted, however plaintiff was not released from prison at that time. Plaintiff was therefore again directed by order dated April 21, 2003 to show cause why the case should not be dismissed as barred by the rule of Porter v. Nussle. Plaintiff's requests for further lengthy extensions of time to show cause were denied on May 13, 2003 and May 23, 2003.

  Ultimately, plaintiff did show exhaustion of his administrative remedies in response to the April 21, 2003 order to show cause, and his application to stay the action until his release from prison was granted on June 11, 2003. Plaintiff was released from prison on May 21, 2004. A court conference was scheduled for November 18, 2004, rescheduled at defense counsel's request, and rescheduled again and finally cancelled because of plaintiff's arrest for violation of parole.

  On January 10, 2005, I directed the parties to advise me whether they were ready for trial. Both sides indicated they were ready to proceed, but defendants renewed their request to dismiss the case on summary judgment. By letter dated February 2, 2005, and again by order dated February 16, 2005, plaintiff was directed to respond to defendants' motion for summary judgment by no later than March 15, 2005. Plaintiff was advised that if he failed to respond by that date, the facts submitted by defendants would be deemed admitted. Plaintiff requested that he be appointed counsel to assist him in opposing the motion and sought a sixty-day extension of time. Those requests were denied on March 2, 2005. Plaintiff has submitted no response to defendants' motion.

  II. Admitted Facts

  Pursuant to Local Civil Rule 56.1(c), the material facts as to which defendants contend there is no genuine issue for trial are deemed admitted for purposes of this motion. Those facts, gleaned from plaintiff's medical records and the sworn affidavits of defendants, are as follows.

  Plaintiff has a history of vocal hoarseness dating back to childhood. He also has a history of smoking, which contributes to hoarseness. On May 16, 1995, while an inmate at the Fishkill Correctional Facility ("Fishkill"), plaintiff underwent surgery to remove a growth from one of his vocal cords. His medical records indicate that he tolerated the procedure well.

  Dr. Supple first became involved in plaintiff's treatment on May 16, 1995 following plaintiff's surgery, when he continued a consult started by another provider who left the facility. Dr. Supple never treated plaintiff personally. He based his consultation on his review of plaintiff's medical records. On the day of plaintiff's surgery, Dr. Supple referred plaintiff to the ENT clinic at St. Agnes Hospital in White Plains, New York.

  Plaintiff was seen at the ENT clinic on June 2, 1995. The clinic recommended speech therapy and a six-month follow-up examination as needed. On June 5, 1995, Dr. Supple entered a request in plaintiff's medical record for the recommended six-month follow-up examination, but did not schedule speech therapy at that time because he did not in his medical judgment believe it was necessary or that it would be helpful.

  On September 22, 1995, plaintiff filed a grievance against Dr. Supple with the Inmate Grievance Review Committee ("IGRC"), asking why it was taking so long to receive the recommended voice therapy. On September 25, 1995, Dr. Supple responded to plaintiff's grievance by scheduling him for voice therapy. He did this not because he thought the therapy was necessary, but simply because plaintiff grieved the issue. On September 27, 1995, the IGRC concluded that the action plaintiff was requesting had been satisfied.

  As a result of Dr. Supple's referral, plaintiff met on November 2, 1995 with Diane Phelan, a speech-language pathologist at St. Francis Hospital in Poughkeepsie, New York. Phelan wrote in her evaluation that, according to plaintiff, his hoarseness had been fairly consistent over time and his voice was the same then as it had been before the surgery. Dr. ...


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