The opinion of the court was delivered by: William M. Skretny United States District Judge
1. In this action, Plaintiff Leonard Gliatta alleges that Defendant S. Stein, an orthopedic surgeon, replaced his hip with a defective artificial hip, which dislocated three times before it was surgically replaced. Plaintiff claims that in so doing, Defendant evinced deliberate indifference to Plaintiff's medical needs and violated his rights under the Eighth Amendment to the United States Constitution. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983.
2. Plaintiff, acting pro se, commenced this action on March 19, 2003, by filing a Complaint and various motions in the United States District Court for the Western District of New York. On April 25, 2003, this Court granted Plaintiff's motion to proceed in forma pauperis, denied his motion for appointment of counsel, and dismissed his complaint with prejudice. On appeal, the Second Circuit Court of Appeals vacated the portion of this Court's Order dismissing Plaintiff's complaint with respect to Dr. Stein, and remanded the case to allow Plaintiff to amend his complaint so as to properly state an Eighth Amendment claim of deliberate indifference to his serious medical needs.*fn1 Accordingly, on February 10, 2004, this Court issued an Order granting Plaintiff leave to file an amended complaint by March 8, 2004. Plaintiff filed his first Amended Complaint on February 25, 2004.
3. On April 19, 2004, Plaintiff filed a Second Amended Complaint naming as Defendants both Dr. Stein and Smith & Nephew, Inc., the manufacturer of the allegedly defective artificial hip device. By Decision and Order entered on May 26, 2004, this Court:
(1) declined to exercise supplemental jurisdiction over the Second Amended Complaint to the extent it could be construed to allege a state law medical malpractice claim against Dr. Stein; (2) dismissed all claims against Smith & Nephew, Inc., without prejudice; and (3) granted Plaintiff leave to file a third amended complaint setting forth a cognizable federal claim against Smith & Nephew, Inc., no later than June 8, 2004. Plaintiff failed to file a third amended complaint as directed. Accordingly, by Order entered on June 29, 2004, this Court dismissed all claims against Smith & Nephew, Inc. with prejudice, and directed service of the Summons and Second Amended Complaint upon Dr. Stein. Dr. Stein filed an Answer to the Second Amended Complaint on November 9, 2004.
On December 12, 2005, Dr. Stein filed the instant Motion for Summary Judgment.*fn2 By Order entered on December 22, 2005, Plaintiff was directed to submit his response by January 27, 2006, which he failed to do. On April 12, 2006, this Court entered a second Order, directing Plaintiff to file his response by April 28, 2006, and notifying him that failure to file a response to Defendant's motion could result in dismissal of his case. A review of the docket reveals that Plaintiff has not filed any response to Defendant's Motion. This Court must therefore resolve Defendant's Motion without the benefit of Plaintiff's response. For the reasons stated below, Defendant's Motion for Summary Judgment is granted.
4. "When a party has moved for summary judgment on the basis of asserted facts supported as required by [Rule 56(e) of the Federal Rules of Civil Procedure] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992). Here, despite having been given two extensions of time in which to file a response, Plaintiff has filed nothing in opposition to Defendant's Motion. Accordingly, this Court assumes the truth of the following facts, which Defendant has asserted and which are supported by the record. See Local Rule 56.1(c) (statements of undisputed fact that are not controverted by the non-moving party are deemed admitted); Cassidy v. Nicolo, No. 03-CV-6603, 2005 WL 3334523, at *2 (W.D.N.Y. Dec. 7, 2005) (deeming the facts asserted by the defendants admitted where the plaintiff failed to file a response); Johnson v. Kachelmeyer, No. 03-CV-356S, 2006 WL 625837, at *1 (W.D.N.Y. Mar. 9, 2006) (holding the same).
Plaintiff's medical records indicate that Plaintiff entered into the custody of the New York Department of Corrections ("DOCS") on or about January 12, 2000. (Def.'s State., ¶ 6).*fn3 Plaintiff's admission history indicates that at that time, he weighed approximately 230 lbs., was 5'8" tall, used a cane for walking, suffered from hypertension, diabetes, degenerative hip disease, obesity and neuropathy, and had undergone three back surgeries and one prostate surgery. (Def.'s State., ¶ 6). Plaintiff was transferred to Collins Correctional Facility on or about February 22, 2000. (Def.'s State., ¶ 7). Plaintiff was diagnosed with degenerative joint disease during a radiology consultation at Brooks Memorial Hospital on or about February 24, 2000. (Def.'s State., ¶ 8). Thereafter, Plaintiff was referred to Dr. Stein, an orthopedic surgeon, who recommended that Plaintiff undergo a bilateral total hip replacement. (Def.'s State., ¶¶ 9, 10). In preparation for the surgery, Dr. Stein ordered x-rays of Plaintiff's lumbar spine and repeat x-rays of his left hip and femur. (Def.'s State., ¶¶ 9, 10). Dr. Stein explained to Plaintiff that because of his history of cardiac disease and smoking, he faced a substantially greater risk of fatality and complications from surgery. (Def.'s State., ¶ 10). Nonetheless, Plaintiff indicated that he wanted to proceed with the surgery. (Def.'s State., ¶ 10).
After a second radiology exam on July 14, 2000, and a second orthopedic exam by Dr. Stein on August 2, 2000, Plaintiff underwent total left hip replacement surgery at Wyoming County Community Hospital ("Wyoming Hospital") on November 6, 2000. (Def.'s State., ¶¶ 11-13). Dr. Tan, the Facility Health Services Director of the Medical Services Unit at Collins Correctional Facility, rendered post operative care to Plaintiff for several days. (Def.'s State., ¶¶ 14, 15; see also Decl. of Dr. Tan, ¶¶ 1, 13, 14). According to the Admission and Discharge Summary from Wyoming Hospital and the Infirmary Progress Reports from Collins Correctional, Plaintiff's surgery and recovery were uncomplicated. (Def.'s State., ¶ 15).
After several follow-up visits with Plaintiff following his left hip replacement, Dr. Stein scheduled the total right hip replacement surgery for May 7, 2001. (Def.'s State., ¶¶ 16, 18-21). Plaintiff was transferred to Wyoming Hospital for total right hip replacement surgery on May 6, 2001. (Def.'s State., ¶ 21). Following surgery, Plaintiff was immediately discharged to Attica Infirmary, and then to Collins Correctional's general population on May 31, 2001. (Def.'s State., ¶¶ 22, 23). Plaintiff's surgery and recovery were described as "uncomplicated" and "unremarkable." (Def.'s State., ¶¶ 23-24).
On June 11, 2001, after complaining of severe pain in his right hip, Plaintiff was transported to Erie County Medical Center ("ECMC"), where he was diagnosed with a right hip dislocation and was immediately treated. (Def.'s State., ¶ 25). The following day, Plaintiff was transferred to Wyoming Hospital's emergency room for evaluation by Dr. Stein. (Def.'s State., ¶ 26). At that time, x-ray films of Plaintiff's pelvis and right hip showed that Plaintiff's prosthesis was no longer dislocated. (Def.'s State., ¶ 27). Dr. Stein confirmed that the prosthesis was not dislocated when he physically examined Plaintiff on June 12, 2001. (Def.'s State., ¶ 28). Dr. Stein ordered that Plaintiff wear a knee immobilizer at all times, except when bathing, and Plaintiff returned to Collins Correctional. (Def.'s State., ¶¶ 28, 29). Dr. Tan discharged Plaintiff from the infirmary to his cell on June 14, 2001, noting that he was "doing fine" after being treated by Dr. Stein. (Def.'s State., ¶ 29).
Dr. Stein examined Plaintiff during follow-up visits on July 25, 2001, and August 29, 2001, without incident. (Def.'s State., ¶¶ 31, 32). During an examination on October 24, 2001, Plaintiff complained that he felt a "shifting" of the right prosthesis, and Dr. Stein ordered a follow-up as needed, if Plaintiff became more uncomfortable. (Def.'s State., ¶ 33). Three days later, Plaintiff complained that his right hip "popped out," and was transported to Wyoming Hospital where an x-ray revealed that his right hip had, in fact, dislocated. (Def.'s State., ¶¶ 34-36). After putting Plaintiff under an anesthetic, another doctor at Wyoming Hospital, Dr. Coniglio, reduced his right hip dislocation. (Def.'s State., ¶ 36). Plaintiff was discharged from Wyoming Hospital on October 29, 2001. (Def.'s State., ¶ 37). In Plaintiff's Discharge Orders, Dr. Stein noted Plaintiff's right hip dislocations were recurrent and advised that he should be rescheduled for revision surgery as soon as possible. (Def.'s State., ¶ 37).*fn4
On November 6, 2001, Dr. Stein, assisted by Dr. Coniglio, performed Plaintiff's revision surgery, during which they replaced the "rasp" affixed to Plaintiff's femur with a different sized "rasp." (Def.'s State., ¶ 41). The replacement "rasp" was found to have an "excellent fit" with the femoral component and to be extremely stable in flexion, extension, internal rotation, and adduction. (Def.'s State., ¶ 41). Dr. Stein concluded that Plaintiff had tolerated the procedure well. (Def.'s State., ¶ 41). After being discharged from Wyoming Hospital on November 11, 2001, Plaintiff received post operative care and two months of physical therapy at Attica Infirmary. (Def.'s State., ¶¶ 42, 44). Plaintiff never reported any further complications with his right hip replacement after the Attica Infirmary discharged him to Collins Correctional on or about February 4, 2002. (Def.'s State., ¶¶ 45, 46).
5. Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is warranted where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, ...