The opinion of the court was delivered by: Honorable Hugh B. Scott United States Magistrate Judge
Before the Court is plaintiff's motion for summary judgment (Docket No. 44*fn1 ), essentially for partial summary judgment as to one claim. Responses to this motion initially were due by May 15, 2009, and replies were due by May 25, 2009 (Docket No. 45), but this schedule was extended with responses due May 20, 2009, and any replies by June 5, 2009 (Docket No. 50). This motion was held in abeyance pending resolution of other procedural motions (Docket Nos. 56, 79; see also Docket Nos. 57, 73, 76, 89), which were decided on September 18, 2009 (Docket No. 97). On April 13, 2009, the parties consented to proceed before the undersigned as Magistrate Judge (Docket No. 43).
In this § 1983 action, plaintiff, a pro se inmate, alleges that he suffered second degree burns from a makeshift heating pad made by one of the defendants in 2007, the result of alleged deliberate indifference to his medical needs in violation of his Eighth Amendment rights (see Docket No. 59, Pl. Br. at 1). He also alleges failure to protect, failure to act to remedy a wrong, creating and allowing an unconstitutional custom, failure to train, supervise, manage subordinates, deficient management in allowing continued retaliation of false misbehavior reports, and violations of Eighth and Fourteenth Amendments (see Docket No. 1, Compl.), but he appears not to assert these claims in his present summary judgment motion. Defendants filed separate Answers (Docket Nos. 20-27, 29-31, 33-36).
Plaintiff's present motion is the deliberate indifference claim arising from the burns he allegedly suffered from the makeshift heating pad. According to his uncontested statement of material facts (see Docket Nos. 65, 100), see also W.D.N.Y. Loc. Civ. R 56.1(b) (papers opposing summary judgment "shall" include statement of material facts), (c) (facts in statement deemed admitted unless controverted by opponent's statement), on December 29, 2007, plaintiff was an inmate in the regional medical unit of Wende Correctional Facility (e.g., Docket No. 65, Pl. Statement ¶ 1). Registered nurse defendant R. Nagel*fn2 provided plaintiff with the makeshift pad, using a blue "chux"or "Chuck" pad (a disposable underpad), dampening it, rolling it into a ball, taping it together, and placing it in a microwave oven for what plaintiff terms "an extended period of time" (id. ¶ 3; Docket No. 92, Pl. Aff. ¶ 10). Nagel then applied this pad on plaintiff's back causing second degree burns to plaintiff's back (Docket No. 65, Pl. Statement ¶ 3). Plaintiff points out that Nagel did not manufacture heating pads or test them pursuant to medical device standards (id. ¶ 4) and Nagel used materials (blue chux pad and surgical tape) not intended to be used as a heating pad (id. ¶5). Plaintiff next claims that the makeshift pad was adulterated under the Federal Food, Drug and Cosmetic Act (id. ¶ 6).
In a separate Affidavit (Docket No. 92), plaintiff states that, on December 28, 2007, defendant nurse practitioner J. Wrest previously prescribed a warm/hot pack be applied to plaintiff's back, but failed to know if and how her written order would be complied with. Plaintiff contends that Nagel disregarded this order the next day by making the makeshift heating pad. (Docket No. 92, Pl. Aff. ¶ 3.) Here, plaintiff alleges that defendants failed in their duty that "higher level officials" (such as the Commissioner, chief medical officer, and superintendent) owed to inmates of adequate and reasonable care and freedom from serious injury (id. ¶ 7). This duty was breached when they allowed a microwave oven, usually used for heating food, to be used for medical purposes (id. ¶ 8). He claims that he suffers from permanent scarring (an 8 inch by 4 inch scar) from the burns received from the makeshift pad, which was treated from December 30, 2007, to February 11, 2008, when discontinued by defendant Radder (id. ¶ 9). Plaintiff continued to be prescribed pain medication through November 2008 and a skin cream ordered by defendant Dr. Bukowski in June 2008 (id.).
Defendants deny that plaintiff has presented concrete evidence that he was burned or the cause of any such burn (Docket No. 54, Defs. Atty. Decl. ¶ 5; Docket No. 55, Defs. Memo. at fourth unnumbered page). They argue that plaintiff has not met the standard for deliberate indifference, alleging at most medical malpractice (Docket No. 54, Defs. Atty. Decl. ¶ 6). Defendants intend to move for summary judgment at the conclusion of discovery (id. ¶ 7*fn3 ).
A. Motion for Summary Judgment
Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits 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. Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003); Fed. R. Civ. P. 56(c). The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists. In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant. Ford, supra, 316 F.3d at 354. "A dispute regarding a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' " Lazard Freres & Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1535 (2d Cir.) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)), cert. denied, 522 U.S. 864 (1997). While the moving party must demonstrate the absence of any genuine factual dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), the party against whom summary judgment is sought, however, "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (emphasis in original removed); McCarthy v. American Intern. Group, Inc., 283 F.3d 121, 124 (2d Cir. 2002); Marvel Characters v. Simon, 310 F.3d 280, 285-86 (2d Cir. 2002).
The Local Civil Rules of this Court require that movant and opponent each submit "a separate, short, and concise" statement of material facts, and if movant fails to submit such a statement it may be grounds for denying the motion, W.D.N.Y. Loc. Civ. R. 56.1(a), (b). The movant is to submit facts in which there is no genuine issue, id. R. 56.1(a), while the opponent submits a statement of material facts as to which it is contended that there exists a genuine issue to be tried, id. R. 56.1(b). "Each statement of material fact by a movant or opponent must be followed by citation to evidence which would be admissible, as required by Federal Rule of Civil Procedure 56(e)," with citations identifying "with specificity" the relevant page or paragraph of the cited authority, id. R. 56.1(d). All material facts stated in movant's statement that are not controverted by opponent's counter-statement shall be deemed admitted, id. R. 56.1(c). The purpose of these statements, and the appendix of supporting evidence, id. R. 56.1(d), is to summarize and highlight for the Court the material factual issues, the authority in the evidentiary record for the purported facts, and whether the parties believe they are in dispute.
One additional factor here is the fact that plaintiff is proceeding pro se. As such, this Court must liberally construe his pleadings, see Haines v. Kerner, 404 U.S. 519 (1972) (per curiam); see ...