Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Balkum v. Unger

February 4, 2009


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



Plaintiff, formerly a prison inmate in the custody of the New York State Department of Correctional Services ("DOCS"), is suing pursuant to 42 U.S.C. § 1983, alleging that while he was in DOCS custody, Defendants violated his Eighth Amendment rights by denying him appropriate medical care. Now before the Court is Defendants' motion for summary judgment [#19]. For the reasons that follow, the application is granted.


Unless otherwise noted, the following are the undisputed facts of this case viewed in the light most favorable to Plaintiff. At all relevant times, Defendant David Unger ("Unger") was the Superintendent of Livingston Correctional Facility ("Livingston"), Defendant Benjamin Agustin, M.D. ("Agustin") was the Facility Health Services Director at Livingston, and G. Coniglio, M.D. ("Coniglio") was a private orthopedic specialist who provided medical services to DOCS inmates on a contract basis. On January 15, 2003, Plaintiff was transferred to Livingston from another correctional facility. At that time, Plaintiff informed the medical staff that he had a decreased range of movement in his right shoulder. On or about January 30, 2003, Agustin obtained an x-ray of Plaintiff's shoulder, which showed "minimal acromioclavicular arthrosis suggestive of minimal changes of impingement." On February 26, 2003, Agustin prescribed Celebrex for Plaintiff's pain. Plaintiff had previously been provided with acetaminophen, ibuprofen, naproxen, and cortisone injections. On April 24, 2003, Agustin arranged to have Plaintiff examined by Coniglio, who diagnosed "DJD [degenerative joint disease] of the right AC joint." Coniglio recommeded surgery, and specifically, "excision of the lateral end of the right clavicle." Coniglio scheduled surgery for August 26, 2003, and indicated that prior to surgery, Plaintiff should receive occupational therapy. (See, Agustin Affidavit ¶ 10 and Exhibit, Bates Stamp 00014).*fn1 However, on August 4, 2003, Plaintiff declined to receive occupational therapy, stating: "I have received several months of extremely painful physical therapy for my right shoulder already. Last orthopedic visit I was told that I was being scheduled for surgery. I want the appropriate medical treatment for my shoulder." (Id. at Bates stamp 00017). As a result, Agustin cancelled the surgery. (Agustin Aff. at ¶ 12) ("Based upon Balkum's refusal to go to occupational therapy, I cancelled Balkum's surgery.").

In November 2003, Balkum saw Plaintiff again, at which time Plaintiff continued to complain of shoulder pain. Agustin again referred Plaintiff to Coniglio, who evaluated Plaintiff for a second time on November 6, 2003. Coniglio's diagnosis was "traumatic arthritis AC joint right shoulder," and he recommended "Mumford excision lateral end of right clavicle." On November 26, 2003, Agustin asked Coniglio to schedule surgery. On February 3, 2004, Coniglio performed the surgery, which was successful.

On November 16, 2006, Plaintiff commenced the subject action. The complaint alleges that Defendants conspired to delay Plaintiff's surgery. In support of that claim, Plaintiff alleges that Agustin should not have cancelled his first surgery merely because he refused to participate in occupational therapy. Plaintiff further contends that Unger was part of the conspiracy, since he denied Plaintiff's inmate grievance complaining about the cancellation of the surgery. Plaintiff also maintains that Agustin and Coniglio were part of a conspiracy, since, between his first and second consultations with Plaintiff, Coniglio changed the wording of his diagnosis from "DJD [degenerative joint disease]" to "traumatic arthritis," which Plaintiff believes was intended to make his condition appear less severe. Finally, Plaintiff alleges that Coniglio attempted to make it appear that he had ordered occupational therapy treatment for Plaintiff, when he did not.

On February 15, 2008, Defendants filed the subject motion for summary judgment [#17]. Defendants maintain that Plaintiff's claims are time-barred by the three-year statute of limitations that is applicable to actions brought under 42 U.S.C. § 1983. In that regard, they state that anything that occurred prior to November 16, 2003, falls outside of the limitations period. They further contend that none of the complained-of actions occurred after November 6, 2003. Defendants further state that none of the Defendants was deliberately indifferent to Plaintiff's medical care, and that Unger was not personally involved in such care at all. In support of the application, Agustin submitted an affidavit, in which he states, inter alia, that Plaintiff received appropriate medical treatment. Agustin further states that Unger was not personally involved in any decisions concerning Plaintiff's medical care.

The Court subsequently issued a Motion Scheduling Order [#30], directing Plaintiff to file and serve any responsive papers on or before October 31, 2008. Plaintiff did not file opposition papers, and Defendants' factual assertions are therefore accepted as true. See, Local Rule 56.1(c).


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[1][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)("W hen 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 judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993). The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). Moreover, since Plaintiff is proceeding pro se, the Court is required to construe his submissions liberally, "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).*fn2

Plaintiff is suing pursuant to 42 U.S.C. § 1983, and the legal principles applicable to such claims are well settled:

In order to establish individual liability under § 1983, a plaintiff must show (a) that the defendant is a "person" acting "under the color of state law," and (b) that the defendant caused the plaintiff to be deprived of a federal right. See, e.g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Additionally, "[i]n this Circuit personal involvement of defendants in alleged constitutional deprivations is a ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.