The opinion of the court was delivered by: MIRIAM CEDARBAUM, Senior District Judge
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withdrawn as a defendant from the case.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.
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'
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
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. ...