The opinion of the court was delivered by: William M. Skretny United States District Judge
Plaintiff Jose Ventura commenced the instant action pro se under 42 U.S.C. § 1983 against Defendants, all of whom are employees of the New York State Department of Corrections ("DOCS"), alleging that they violated his Eighth Amendment rights during his incarceration at Orleans Correctional Facility ("OCF"). Specifically, Plaintiff claims that Defendants used excessive force against him on two occasions and acted with deliberate indifference toward his medical needs on several occasions. Presently before this Court is Defendants' Motion for Summary Judgment. (Docket No. 81).*fn1 For the following reasons, the motion is granted in part and denied in part.
Plaintiff's Complaint was entered on the docket on June 20, 2001. Because Plaintiff was granted in forma pauperis status, his Complaint was screened pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a). As a result of this screening process, Plaintiff's claims of assault, battery, and negligence were dismissed without prejudice, and his claims against OCF, its Superintendent, Deputy Superintendent, and various other individual defendants were dismissed. Plaintiff's excessive force and deliberate indifference claims survived, leaving as Defendants: Dr. Sinha; Nurse Baccacio; Nurse Betty Fassio; E. Minardo (the staff involved in the deliberate indifference claim); and Sergeant Sullivan; Officer A. Miller; Officer G. Peperone; Officer Montanari*fn2 ; and Officer M. Lessard (the corrections officers involved in the excessive force claims). After this initial screening, several motions to amend the Complaint and for appointment of counsel were denied, and discovery proceeded before the Magistrate Judge who resolved discovery motions, as well as additional motions for appointment of counsel.
In October of 2005, nearing the end of the discovery period, the Magistrate Judge granted Plaintiff's fifth request for appointment of counsel, having found a threshold showing of some likelihood of success on the merits. Shortly thereafter, Defendants filed the instant Motion for Summary Judgment, but Plaintiff's counsel neither responded to it nor appeared for oral argument thereon before Judge John T. Elfvin, the then-assigned District Judge. Consequently, the matter was deemed submitted for decision on January 27, 2006.
Seven months later, while the matter was pending decision, the Court learned that Plaintiff's counsel had been incapacitated. The motion was re-opened and another opportunity to respond was granted, however, new counsel was eventually required -- and appointed on November 17, 2006. Thereafter, Plaintiff's responses were filed and the matter was again submitted for decision on April 13, 2007. This case was reassigned to the undersigned on October 17, 2007, after Judge Elfvin elected to take inactive status. This Court has taken into consideration all proceedings before Judge Elfvin in rendering its decision herein.
1. The Deliberate Indifference Claim
Unless otherwise noted, the following facts are undisputed and are material to the deliberate indifference claim:
a). Medical Treatment at Attica Correctional Facility ("Attica")
While incarcerated at Attica, Plaintiff complained of, and was receiving regular treatment for, lower back pain due to a prior surgery that entailed the removal of a spinal disc. This treatment involved dozens of medical exams and consultations, regular physical therapy, numerous X-rays, an MRI exam (Magnetic Resonance Imaging), and the prescribing of various medications and various other medical apparatus designed to assist with movement or alleviate pain. Plaintiff was also advised regarding surgical options and eventually scheduled for elective surgery, which was delayed (and ultimately never took place) in order to pursue a more aggressive course of physical therapy. (¶¶ 8 - 81).*fn3
b). Medical Treatment at OCF and the Medical Limitation Slips Upon his transfer to OCF on or about April 6, 1999, Plaintiff's incoming review papers noted his lower back problems and the prior disc removal and he was given a permit for a lower bunk. The next day he was seen by health personnel for complaints of lower back pain. He was prescribed ibuprofen and a topical analgesic and signed up for a doctor's appointment ("MD callout"). Two days later, prior to the MD callout being completed, upon Plaintiff's persistent complaints of pain, the ibuprofen and analgesic were issued. (¶¶ 82 - 84). From April 12, 1999 to April 30, 1999, Plaintiff continued to complain of pain but missed two MD callouts. (¶¶ 86 - 92).
OCF is what is known as a 'program facility', meaning that participation in a vocational program is mandatory. (See Docket No. 82, Ex. F). From May to November, 1999, Plaintiff was assigned to the Commercial Arts program. (¶ 133). This program does not require any heavy lifting, bending, or standing for more than fifteen (15) minutes at a time and participants are permitted to stand and stretch at any time throughout. (¶ 112).
On May 4, 1999, Plaintiff indicated a misunderstanding with the MD callout procedure due to his language barrier. Another MD callout was issued. On May 7, 1999, Defendant Sinha examined plaintiff pursuant to the MD callout. He ordered an X-ray of Plaintiff's lower spine and prescribed physical therapy. The X-ray was performed six (6) days later. (¶¶ 93 - 96).
Plaintiff complained to OCF health personnel five (5) more times between May 18, 1999 and June 21, 1999, when he was again examined by Sinha. During this one month period, he requested stronger pain medication, a backboard, a single cube, and a change in his limitation orders. Upon examination, Sinha approved the request for a single cube and referred Plaintiff to an orthopedic specialist. He was seen by the specialist on July 9, 1999. (¶¶ 97 - 103).
On July 14, 20 and 27, 1999, Plaintiff renewed his requests for stronger pain medication and a backboard. He was issued an MD callout to address these requests. On August 2, 1999, Plaintiff was again examined by Sinha who referred him to a spine specialist based on the results of the orthopedic specialist consult. Plaintiff complained of pain to OCF health personnel on August 5 and 13, 1999. He was prescribed pain medication. During this time he also requested to be in "one program". A medical limitation slip was issued by OCF health personnel on August 13, 1999 (hereinafter the "first limitation slip"), stated that Plaintiff could not stand for more than 15 minutes or lift over 25 pounds. (Docket No. 99-2, Ex A).
On September 9, 1999, Plaintiff wrote a letter to Defendant Minardo requesting a transfer or release out of the Commercial Arts program. In it, he urged that he was "medically unable to participate in the Commercial Arts programs, notwithstanding the fact that the frisks I have to go through twice daily are more than enough to medically incapacitate me". He also attached a copy of the August 13th limitations slip. (Docket No. 99-2, Ex. B). Four days later, on September 13, 1999, Minardo responded with a written message to Plaintiff that said: "per my conversation with . . . [the vocational supervisor], it is highly unlikely that you would be required to stand for more than 15 minutes while awaiting a pat frisk out of your Commercial Arts program. Therefore, no program change will occur at this time." (Docket No. 83, Ex. C).
On September 17, 1999, Plaintiff requested to be seen by another specialist and Sinha scheduled a follow-up appointment at the Strong Hospital orthopedic clinic for October 20, 1999. At this appointment, the specialist recommended that Plaintiff be put on a course of ibuprofen, undergo physical therapy if there was no improvement with medication, be given a back brace should he request one, and not bend forward for prolonged periods of time. A follow-up examination after three months was recommended. (¶¶ 121, 129, 131). No new limitation slip was issued at this time.
On November 3, 1999, Plaintiff informed OCF health personnel that his medical situation had changed. On November 5, 1999, he was seen by Dr. Sutton for both lower back and shoulder pain. Another medical limitations slip was issued (hereinafter "the new slip") which indicated that Plaintiff could not stand for more than 15 minutes or lift over 25 pounds (the exact same limitations as in the first limitation slip) but also stated that he was "unable to participate in program due to low back pain s/p laminectomy." (Docket No. 99-2, Ex. D). It did not identify the program or the duration of the inability to participate.
Four days later, on November 9, 1999, rather than waiting until the next Program Committee quarterly review to request the change which was the usual procedure, Plaintiff attempted to present the new slip directly to the program instructor prior to the beginning of class. (¶¶ 124, 136). The incidents which form the basis of his excessive force claim ensued. At this time, however, health personnel was consulted with respect to the new slip vis a vis Plaintiff's specific limitations. The health personnel records noted that the lifting and standing limitations were not relevant to the Commercial Arts program and there was no clarification for the program restriction language. (¶ 147). The Disciplinary proceedings that followed this incident requested and obtained clarification of the 'unable to participate' language with a fuller and more specific ...