The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
On December 18, 2008, defendants Paul M. Laird, David E. Ortiz, Raul Campos, Mahmoud Ittayem, Peter Goldstein, M.D., Michael Borecky, M.D., Robert Beaudoin, M.D., Troy Branswich, P.A, Asiamel Cruz and Jennifer Dannels moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure for dismissal of pro se plaintiff Eddie Tarafa's amended complaint. Plaintiff seeks $15,000,000 in damages against each individual defendant for deliberate indifference to his serious medical needs in violation of the Eighth Amendment, based on their alleged failure to provide him with proper medical treatment for hernias and related ailments. For the reasons set forth below, the motion for summary judgment is granted, and plaintiff's amended complaint is dismissed in its entirety.
Plaintiff,a state court prisoner, was sentenced in December 2004 in Bronx Supreme Court to life imprisonment for second degree murder, conspiracy, criminal possession of a weapon, and criminal solicitation. He was transferred to the federal Metropolitan Detention Center in Brooklyn, New York ("MDC") from September 2005 until January 2008 on a writ ad testificatum. The writ has since been satisfied, and plaintiff was transferred back to the New York State prison system on January 23, 2008.
Prior to his incarceration, in 2000, plaintiff sustained multiple gunshot wounds to his abdomen, hip, and left hand, resulting in multiple surgeries. Plaintiff developed a painful abdominal wall hernia as a result of his previous surgeries.
On January 31, 2007, plaintiff filed this action against the Bureau of Prisons ("BOP") and MDC prison and medical staff, seeking an order from this court requiring the defendants to provide hernia surgery and monetary damages for pain, suffering, and aggravation of the injury resulting from the delayed surgery. On June 15, 2007, defense counsel advised the court that the hernia surgery had been scheduled. On July 23, 2007, despite completion of the hernia surgery on June 26, 2007, the court allowed plaintiff to continue his action pursuant to Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).*fn1 However, the court dismissed plaintiff's claim under the Federal Tort Claims Act ("FTCA") as premature due to plaintiff's failure to first exhaust all administrative remedies. On January 15, 2008, plaintiff sought leave to amend his complaint, which request was granted on February 22, 2008. Defendants now move for summary judgment dismissing all the claims set forth in the amended complaint.
Plaintiff's amended complaint alleges that the medical services provided at the MDC are so deficient that they reflect a deliberate indifference to the serious medical needs of prisoners and, thereforem constitute a violation of the Eighth Amendment. Plaintiff claims that, since the time he was transferred from the New York State prison system to the MDC in September 2005, defendants continuously ignored his complaints of extreme pain arising from his hernias and related complications, and difficulties sleeping, eating, and defecating. He further alleges that defendants failed to promptly provide necessary medical treatment. Specifically, plaintiff claims that he complained about his condition for nine months before being referred to an outside surgeon, and that that it took defendants eighteen months to comply with specific orders from a prison doctor, which were consistent with the outside surgeon's subsequent recommendation, that plaintiff's hernias be surgically treated. Finally, plaintiff complains that, after surgical repair was completed on June 26, 2007, he did not receive adequate post-surgical treatment or pain medication.
Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The court must view all facts in the light most favorable to the nonmoving party, but "only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380 (2007). The nonmoving party may not rely on "[c]onclusory allegations, conjecture, and speculation," Kerzer v. Kingly Mfg.,156 F.3d 396, 400 (2d Cir. 1998), but must affirmatively "set out specific facts showing a genuine issue for trial," FED. R. CIV. P. 56(e).
A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott, 550 U.S. at 380. "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship., 22 F.3d 1219, 1224 (2d Cir. 1994) (citing Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)).
"[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)) (in a suit against prison medical officials for deliberate indifference to medical needs in violation of the Eighth Amendment, finding that pro se filings are "to be liberally construed"). Though a court need not act as an advocate for pro se litigants, in suchcases "there is a greater burden and a correlative greater responsibility upon the district court to insure that constitutional deprivations are redressed and that justice is done." Davis v. Kelly, 160 F.3d 917, 922 (2d Cir. 1998) (citation omitted). Accordingly, the court will interpret plaintiff's supporting papers "to raise the strongest arguments that they suggest.'" Forsyth v. Fed'n Employment and Guidance Serv., 409 F.3d 565, 569 (2d Cir. 2005) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
The Eighth Amendment "is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law." Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003); see Tindal v. Goord, 340 F. App'x. 12, 13 (2d. Cir. 2009) (indicating that findings of negligence or malpractice are not relevant to a deliberate indifference claim). Accordingly, "not every lapse in prison medical care will rise to the level of a constitutional violation." Id. Plaintiff must show more than "negligence in diagnosing or treating a medical condition," because Eighth Amendment liability requires "more than ordinary lack of due care for the prisoner's interests or safety." Farmer v. Brennan, 511 U.S. 825, 835 (1994) (internal quotation marks and citations omitted). "A prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety." Id. at 837. To be liable, "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id.
An official's "failure to alleviate a significant risk that [he] should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment[.]" Farmer, 511 U.S. at 838. To substantiate a claim of deliberate indifference, plaintiff must establish two elements: "that [he] had a 'serious medical condition' and that it was met with 'deliberate indifference.'" Mayo v. County of Albany, No. 09-1745-cv, 2009 WL 4854022, at *1 (2d Cir. Dec. 17, 2009) (quoting Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009)). This standard "requires a showing that defendants acted with 'a state of mind that is the equivalent of criminal recklessness.'" Mayo, 2009 WL 4854022 at *1 (quoting Hernandez v. Keane, 341 F.3d 137, 244 (2d Cir. 2003)); see also Day v. Warren, No. 08-3131-pr, 2010 WL 93150, at *1 ...