The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
In this action, brought to pursuant to 42 U.S.C. § 1983, plaintiff Diallo Rafik Madison ("Plaintiff"), a prison inmate, alleges that Defendants violated his First and Eighth Amendment rights, by acting with deliberate indifference to his serious medical needs and then retaliating against him when he complained. Now before the Court is Defendants' motion for summary judgment (Docket No. [#89]). For the reasons that follow, the application is denied.
Unless otherwise noted the following are the undisputed facts of this case viewed in the light most-favorable to Plaintiff. At all relevant times, Plaintiff was an inmate in the custody of the New York State Department of Correctional Services ("DOCS"). At all relevant times, defendants Dr. James Alves ("Alves") and Nurse K. Dyal ("Dyal") were employed by DOCS at Southport Correctional Facility ("Southport"). Plaintiff's claims arise from a six-month period that he was housed at Southport, between June 2002 and January 2003.
In 2001, prior to his placement at Southport, Plaintiff injured his elbow at Fishkill Correctional Facility when he fell on a wet shower floor. Although X-rays of the elbow were normal, (Plaintiff Deposition at 20), Plaintiff developed a painful lump on the elbow. Plaintiff states that the elbow was painful when extended, and that he had "constant pain and discomfort." (Id. at 21, 60). On or about April 10, 2002, while Plaintiff was housed at Eastern Correctional Facility, a physician, Dr. Guzman, concluded that Plaintiff had a ganglion cyst and ordered an orthopedic evaluation. In June 2002, prior to such evaluation, Plaintiff was transferred to Southport. Alves reviewed Plaintiff's medical records, and apparently agreed with Dr. Guzman's recommendation for an orthopedic evaluation. Additionally, Alves prescribed pain medication and approved Plaintiff's request for an elastic elbow sleeve, which was designed to prevent Plaintiff from fully-extending the elbow. (Id. at 22-24).
In or about June 2002, Plaintiff asked Dyal to see a doctor concerning his elbow pain, and Dyal responded that Alves was on vacation and would not return for about a month. (Id. at 24-25, 28). On June 17, 2002, Plaintiff filed an inmate grievance, complaining about the fact that he had not yet been seen by an orthopedic specialist. The grievance was granted in part, and officials noted that they were in the process of obtaining an appointment.
On August 19, 2002, Plaintiff met with Alves. Alves subsequently cancelled the request for an orthopedic evaluation. In that regard, Alves contends that he examined Plaintiff and found that Plaintiff had a full range of movement in the elbow and no tenderness. Alves maintains that as a result of his examination he concluded that Plaintiff had bursitis and not a ganglion cyst, and that there was no need for an orthopedic evaluation. (Id. at 34-35, 43). However, Plaintiff alleges that Alves also asked him about grievances that he had filed concerning his medical care. (Id. at 29). Plaintiff claims that Alves was "uptight" because Plaintiff had complained that it was taking too long to be seen by an orthopedic specialist. (Id. at 30). Plaintiff further states that Alves became angry when Plaintiff disagreed with his assessment and asked for copies of his medical records. Plaintiff states that Alves said that as long as Plaintiff was at Southport, he would not be seeing an orthopedic specialist, since it would be a waste of taxpayers' money. (Id. at 31). Finally, Plaintiff contends that Alves told him, "Get the fuck out of my office." (Id. at 32).
A few days later, when his pain medication prescription ran out, Plaintiff did not receive a refill for several days. (Id. at 36-37). Plaintiff blames Alves for stopping his medication, since on August 22, 2002, Dyal told him that his medication was stopped because he "blew it," and that Alves didn't want to give him anything. (Id. at 37-38, 45). After five days, Plaintiff's pain medication was continued. (Id. at 38, 53). Plaintiff claims that Alves also subsequently denied his request for a medical order allowing him to be handcuffed in front, rather than behind his back, due to pain in his elbow. (Id. at 39). Plaintiff further contends that Alves and Dyal denied him a new elbow sleeve when the old one became worn.
On January 9, 2003, Plaintiff was transferred from Southport to Great Meadow Correctional Facility ("Great Meadow"). In February 2003, a physician's assistant at Great Meadow removed the cyst from Plaintiff's elbow. Plaintiff contends that the surgery gave him some relief, but that he continued to experience pain. To date, no DOCS physician besides Guzman has recommended that Plaintiff have an orthopedic consultation.
On December 27, 2002, Plaintiff commenced the subject action. Liberally construing the record, Plaintiff is asserting two claims against Defendants: 1) an Eighth Amendment deliberate indifference medical claim; and 2) a First Amendment retaliation claim. Following a period of discovery, Defendants filed the subject summary judgment motion. Defendants maintain that they were not deliberately indifferent to Plaintiff's medical needs, since he did not need to see an orthopedic specialist, and since the alleged denial of medication would have been insignificant. Defendants apparently do not agree that Plaintiff is also asserting a retaliation claim, since they do not discuss such a claim.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249; see also, FED. R. CIV. P. 56(e)("When a motion for summary judgment is made and supported as provided in this rule, and adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary ...