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Senor v. McGrath

July 5, 2007

CHANEL SENOR, PLAINTIFF,
v.
CORRECTIONS OFFICER H. MCGRATH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge

OPINION & ORDER

Pro se Plaintiff Chanel Senor ("Senor") brings this action under 42 U.S.C. § 1983 claiming violations of his Eighth Amendment right to be free of cruel and unusual punishment. His claim is based on his alleged assault by five defendant corrections officers and the failure of Defendants Joan Tardio, R.N. ("Nurse Tardio"), Edmundo Nunez, M.D. ("Dr. Nunez"), and Edward Marra, D.D.S. ("Dr. Marra") to provide him with adequate medical treatment.*fn1 Tardio, Nunez, and Marra ("Defendants") now move for summary judgment as to the medical claims.

This case was referred to United States Magistrate Judge Michael H. Dolinger, who issued his Report and Recommendation ("R&R") on May 7, 2007, recommending that the motion for summary judgment be granted. On May 15, 2007, Senor filed timely objections ("Objections") to Magistrate Judge Dolinger's determination that he had failed to raise a genuine issue of material fact sufficient to sustain his claim against Defendants, and also requested an extension of time to file supplementary papers in opposition to the R&R. Defendants in turn submitted a reply to the Objections on June 7, 2007. The Court agrees with Magistrate Judge Dolinger's recommendation, and grants Defendants' motion for summary judgment. Senor's request for additional briefing is denied.

DISCUSSION

I. Consideration of a Report and Recommendation

A district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). When a timely objection has been made to the magistrate judge's recommendations, the court is required to review the contested portions de novo. Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y. 1991). The court, however, "may adopt those portions of the Report to which no objections have been made and which are not facially erroneous." La Torres v. Walker, 216 F.Supp.2d 157, 159 (S.D.N.Y. 2000).

II. Relevant Facts*fn2

On September 27, 2000, Senor was involved in a violent altercation with five corrections officers, at Green Haven Correctional Facility. Immediately following the incident, Nurse Tardio examined Senor, noting abrasions, swollen eyelids, and a chipped front tooth. Finding no other injuries, Tardio concluded that Senor did not require outside medical attention. Senor saw Nurse Tardio once or twice more over the next few days and complained of back pain, for which she provided ibuprofen. Senor was transferred shortly thereafter to Upstate Correctional Facility, where he received x-rays of his lumbar spine. The results of the x-rays were negative.

Dr. Nunez examined Senor's back in April, June and July 2001, detecting no tenderness, swelling or range-of-motion limitation. In light of these examinations and the negative xray results, he concluded that it was unnecessary for Senor to see an outside specialist. For Senor's pain, Dr. Nunez provided analgesics and recommended physical therapy.

Dr. Marra examined Senor's jaw on March 28, 2001, and referred him to oral surgeon Dr. Kaskel at Coxsackie Correctional Facility. Dr. Kaskel diagnosed Senor with a collapsed bite and recommended muscle relaxants and a night guard. Dr. Marra provided the night guard to Senor, who complained the following month that it was ineffective. In response, Dr. Marra prescribed a muscle relaxant for Senor, who complained six days later that it was not helping his pain and that he was having difficulty chewing. Dr. Marra then recommended another examination by Dr. Kaskel and ordered a soft-food diet for Senor. Following his reexamination, Dr. Kaskel recommended continued use of the night guard and muscle relaxant. Dr. Marra also reexamined Senor in January 2002, finding the range of motion of his jaw to be within normal limits. He declined to recommend surgery for Senor, advising that surgery would not help and could worsen his condition. Senor did not report for any dental treatment during the remainder of 2002 and throughout 2003. From the beginning of 2004 until Senor was transferred to another prison on July 2, 2005, Dr. Marra performed only routine dental work for him.

Senor received MRI examinations of his back in November 2004 and April 2005, which revealed minimal disc protrusion. According to Dr. Albert Paolano, a physician at Great Meadow Correctional Facility, the MRI studies "confirmed the appropriateness of prior treatment." R&R at 9.

III. Summary Judgment Standard

A motion for summary judgment shall be granted "if 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment should only be granted if "the nonmoving party 'has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof'." Berger v. United States, 87 F.3d 60, 64 (2d Cir. 1996) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). In ruling on a motion for summary judgment, the Court must "resolve all ambiguities and draw all factual inferences in favor of the nonmoving party." McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (citation omitted). Where the plaintiff is proceeding pro se, the court must read the plaintiff's pleadings and other memoranda liberally and construe them in a manner most favorable to the plaintiff. ...


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