The opinion of the court was delivered by: Hood, D. J., Sitting by Designation
Plaintiff, Samuel Cabassa, is an inmate in the custody of the New York State Department of Correctional Services ("DOCS")*fn1. In this 42 U.S.C. § 1983 action, Plaintiff seeks compensatory and punitive damages against Defendants, various DOCS doctors and administrators, in both their individual and official capacities. Plaintiff's Complaint alleges violations of the Eighth Amendment, Title II of the American With Disabilities Act ("ADA"), 42 U.S.C. § 12131, et seq, and Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794 (collectively the "Acts"). The matter is before the Court on Defendants' second motion for summary judgment*fn2 (Dkt. No. 59) to which Plaintiff has responded. (Dkt. No. 60).
The following facts are gleaned from Magistrate Judge Peebles' earlier Report and Recommendation:
Plaintiff's claims in this action center upon defendants' diagnosis and treatment of five medical conditions identified in his complaint. A review of the record now before the court confirms that over time plaintiff voiced complaints about each of these conditions, and discloses various efforts by defendants and other health care providers, both within the DOCS and on the part of outside consultants, to address plaintiff's conditions. Plaintiff contends that between April of 2000 and April, 2006, he complained "on approximately thirty separate occasions" to defendants Dr. Forte and Dr. Genovese that he was experiencing severe pain in his left shoulder, but that despite his complaints no action was taken, aside from the scheduling of magnetic resonance imaging ("MRI") testing on one instance and some physical therapy. Complaint (Dkt. No. 1) ¶ 6(1). Plaintiff also alleges that between November, 2000, and March of 2004 his fourteen separate complaints of abdominal pain due to a hernia were similarly disregarded. Complaint (Dkt. No. 1) ¶ 6(2). He likewise maintains that between August of 2001 and July, 2003, he suffered "serious degenerative arthritis" which was not properly medicated. Complaint (Dkt. No. 1) ¶ 6(3). The focus of plaintiff's complaints regarding Dr. Forte's treatment of his arthritis appears to be his alleged failure to provide plaintiff requested medication to relieve pain in his shoulders, hips, knees and lower back between August 24, 2001 and July 10, 2003. Id.
Plaintiff also complains of defendants' treatment of his right knee,asserting that between August 21, 2001 and April of 2003 he was denied an appointment with an outside specialist, and that as a result the diagnosis of his knee condition as a torn meniscus, partial ligament and horizontal cleavage tear, and corresponding arthroscopic surgery in January of 2006 to repair that damage, were delayed. Complaint (Dkt. No. 1) ¶ 6(4). Lastly, plaintiff, who is blind in his left eye, asserts that defendants failed to provide him with proper care and treatment for distorted vision in his right eye from March of 2003 until October of 2004, additionally alleging that he was denied the use of a contact lens for his right eye on two separate occasions. Complaint (Dkt. No. 1) ¶¶ 6(5)-6(7). (Dkt. No. 51, 4-5)(footnote omitted).
Summary Judgment Standard
Summary judgment may be granted when the moving party carries its burden of demonstrating the absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir 1990). It is well-settled that "ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motions." Id. Where a moving party has met its burden, however, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 585-89 (1986). Instead, the nonmoving party must demonstrate specific facts showing that there is a genuine issue for trial. Id., see also, Burt Rigid Box v. Travelers Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002) (citations omitted). Importantly, only disputes concerning facts that might affect the outcome of the lawsuit under controlling law will properly preclude a grant of summary judgment. Salahuddin v. Coughlin, 674 F. Supp. 1048, 1052 (S.D.N.Y. 1987) (citation omitted).
In order to state claim under Title II of the ADA a plaintiff must plead facts which demonstrate that: (1) He or she is a qualified individual with a disability; (2) He or she is being excluded from participation in, or being denied the benefits of some service, program or activity by reasons of his or her disability; and, (3) The entity which provides the service, program or activity is a public entity. Atkins v. County of Orange, 251 F. Supp. 2d 1225 (S.D.N.Y. 2003).
Similarly, under § 504 of the Rehabilitation Act, a plaintiff must show that: (1) He or she has a disability for purposes of the Rehabilitation Act; (2) He or she was "otherwise qualified" for the benefit he or she had been denied; (3) He or she has been denied the benefits "solely byreason" of his or her disability; and, (4) The benefit is part of a "program or activity receiving Federal financial assistance." Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998); Flight v. Gloeckler, 68 F.3d 61, 63 (2d Cir. 1995).*fn3
Even applying the most liberal reading of Plaintiff's Complaint, it is clear that Plaintiff does not state a proper claim under either of the Acts, insofar as he fails to allege any denial of benefits, exclusion from participation in a service, program or activity, or disparate treatment from non-disabled inmates. See generally, Complaint. Failure to allege these elements in an ADA or Rehabilitation Act claim is a "fundamental defect" to the Complaint that should, alone, result in the dismissal of the claims. Atkins v. County of Orange, 251 F. Supp. 2d 1225, 1232 (S.D.N.Y. 2003); see also, Lee v. DOCS, 1999 U.S. Dist. Lexis 13214, at *13 (S.D.N.Y. Aug. 30, 1999) (See, Appendix A, unreported cases); Burgess v. Goord, 1999 U.S. Dist. LEXIS 611, at *7 (S.D.N.Y. Jan. 26, 1999) (dismissing ADA claim where inmate did not allege that he was prevented from using recreation yard or attending religious services because of his severe difficulty walking on stairs) (See, Appendix A, unreported cases); Devivo v. Butler, 1998 U.S. Dist. LEXIS 17719, at *4 (S.D.N.Y. Nov. 10, 1998) (dismissing ADA claim where blind inmate failed to allege that he was denied services in prison because he was blind) (See, Appendix A, unreported cases).
Plaintiff's allegations are little more than a laundry list of complaints regarding the adequacy and timing of the health care services that he received while incarcerated at Shawangunk Correctional Facility ("Shawangunk"). As this Court accurately summarized, "[i]t appears that the gravamen of plaintiff's complaint is delay in addressing his concerns regarding medical conditions, including delay in providing outside consultation, rather than outright refusal to provide treatment."(Dkt. No. 51, 17). Specifically, Plaintiff complains about Defendant Forte's refusal to send him to an outside specialist (Dkt. No. 1, ¶ 6(2)); Defendant Forte's refusal to provide him with pain medication (Dkt. No. 1, ¶ 6(3)); and Defendant Wurzel's delay in securing a replacement contact lens for Plaintiff (Dkt. No. 1, ¶ 6(6)). These complaints ring hollow in the context of an ADA or Rehabilitation Act complaint because they do not announce any denial of benefits, exclusions or disparate treatment.
A challenge to the adequacy of medical care or health services is not a claim of "illegal disability discrimination" as contemplated under the Acts. Atkins, 251 F. Supp. 2d at 1232; Doe, 148 F.3d at 82. Plaintiff's claims were properly encompassed by his previously dismissed Eighth Amendment deliberate indifference claims, and do not state a cause of action under the ADA or the Rehabilitation Act. Id.; See also, Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (stating that plaintiff ...