The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
AMENDED REPORT-RECOMMENDATION AND ORDER*fn2
Plaintiff pro se Richard Wilson ("Wilson"), an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, seven DOCS employees, violated his constitutional rights under the Eighth Amendment. Compl. (Dkt. No. 1). Presently pending is defendants' motion*fn3 for summary judgment pursuant to Fed. R. Civ. P. 56. Dkt. No. 31. Wilson failed to respond to the motion. For the following reasons, it is recommended that defendants' motion be granted in part and denied in part.
Wilson did not oppose defendants' motion. "Summary judgment should not be entered by default against a pro se plaintiff who has not been given any notice that failure to respond will be deemed a default." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Defendants provided such notice in their Notice of Motion here. Dkt. No. 31-9. Additionally, the court also provided such notice, and granted two extensions of time for Wilson to file a response. Dkt. Nos. 36, 39. Despite this notice and these extensions, Wilson failed to respond. "The fact that there has been no response to a summary judgment motion does not... mean that the motion is to be granted automatically." Champion, 76 F.3d at 436. Even in the absence of a response, a defendant is entitled to summary judgment only if the material facts demonstrate his or her entitlement to judgment as a matter of law. Id.; Fed. R. Civ. P. 56(c).
Wilson has not responded to raise any question of material fact, the facts as set forth in defendants' submissions are accepted as true. See e.g., Lopez v. Reynolds, 998 F. Supp. 252, 256 (W.D.N.Y. 1997)); see also N.D.N.Y.L.R. 7.1(a)(3) ("The Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.") (emphasis in original). However, Wilson was deposed in this case (Dkt. No. 31-1)and also signed the complaint under oath. Compl. at 13. Such documents must be considered in opposition to defendants' motion here. See Gayle v. Gonyea, 313 F.3d 677, 682-83 (2d Cir. 2002) (holding that prisoner's verified § 1983 complaint met requirement of Rule 56(e) that affidavits be made on basis of personal knowledge, set forth facts that would be admissible in evidence, and demonstrate affiant's competency to testify to matters in affidavit).
All of the relevant events occurred during Wilson's incarceration at Upstate Correctional Facility ("Upstate").
Beginning on May 12, 2005, Wilson made requests to unidentified individuals to speak with defendant King, a Sergeant at Upstate, to be moved from his cell because his cell mate, Diaz, had "threatened [him] with physical violence, and was known to be assaultive... racist... [and a member of] 'the Bloods'....," but such requests were ignored. Compl. ¶¶ 6, 8; see also Wilson Dep. at 11-12. King was never personally informed that Wilson was having trouble with Diaz. King Decl. (Dkt. No. 31-5) ¶ 14. On May 12, 2005, Diaz assaulted Wilson because Wilson, due to a back condition for which he failed to receive a lower bunk order,*fn4 was laying on his mattress, on the ground, and blocked the recreation pen door from opening. Compl. ¶¶ 7-8; Wilson Dep. at 13. Over the next few weeks, tensions escalated and Wilson's requests were still ignored. Compl. ¶ 9; Wilson Dep. at 14.
On the morning of May 27, 2005, Diaz again assaulted Wilson, striking him with his feet and fists.*fn5 Compl. ¶ 10; Wilson Dep. at 14-16, 21-22. Wilson was found shortly thereafter by corrections officers and was transported to the infirmary whereupon he told the officers he had slipped, fallen, and hit his back on his toilet. Compl. ¶¶ 11-12; Wilson Dep. at 22-23; Dkt. No. 31-4 at 71, 125. It is uncontested that Wilson initially lied, but that he did so for fear of further reprisals by Diaz. Compl. ¶ 12; Dkt. No. 31-4 at 3.
Wilson was initially seen by defendant Travers, a nurse, to whom he "stated that when he bent over his back went out." Dkt. No. 31-4 at 16, 68; see also Tichenor Decl. (Dkt. No. 31-6) ¶ 9; Travers Decl. (Dkt. No. 31-7) ¶ 4. Travers referred Wilson to defendant Tichenor, a physician's assistant. Dkt. No. 31-4 at 16, 68; Travers Decl. ¶ 5. Wilson had previously been treated by Tichenor at the nurses' station for "lower back injuries [including]... herniated disks... [and] spurs in [his] spine from prior fractures." Wilson Dep. at 24. Tichenor had previously denied Wilson his lower bunk permit and refused to treat his complaints of chronic pain with anything other than Tylenol. Wilson Dep. at 24.
Upon arrival at the station, Wilson told Tichenor that he was "having a lot of pain in [his] lower back," so Tichenor began performing stress exams to evaluate the strength and flexibility in his feet and legs. Id. at 27, 68. During the examination, Wilson failed to cooperate, "refus[ing] a range of motion exam of his back." Tichenor Decl. ¶ 11. Tichenor had been told by the corrections officers who were escorting Wilson that he had fallen in his cell and injured his back when he hit his toilet. Wilson Dep. at 27. Tichenor concluded that Wilson was objectively fine, diagnosed him with a lower back strain, prescribed a muscle relaxant, and concluded he should return to his cell. Id. at 27-28; Tichenor Decl. ¶ 12. At this point, Wilson told Tichenor that he was assaulted by his cell mate, had been kicked and hit repeatedly in his back and stomach, and was in a lot of pain. Compl. ¶ 14; Wilson Dep. at 28-30; Dkt. No. 31-4 at 4-5 (detailing that upon arriving at the nurses' station Wilson "immediately reported [to medical] that [his] bunkie had assaulted [him]," and repeatedly complained of "intense pain in [his] lower left back/lower left abdomen area." ). "Tichenor stated that during this exam Wilson never stated to her that he was punched in the back until the exam was completed and he refused to return to his cell;" however, his "injury [wa]s not consistent with the inmate's statement of being punched in the back." Dkt. No. 31-4 at 16; see also Dkt. No. 31-4 at 9 (memorandum from Tichenor stating that Wilson "complained of lower back pain," his diagnostic tests were normal, she felt there was nothing wrong with him, and there was no examination of his abdomen because "he did not complain of abdominal pain."); Dkt. No. 31-4 at 74, 128 (memorandum from Tichenor to Smith detailing that Wilson "complained of low back pain," so his abdomen was not examined and that he initially lied about his injuries); but see Tichenor Decl. ¶ 13 ("After [Wilson] left the medical room with the officers, he refused to go back to his cell and claimed that his cell mate had punched him in the back."). Medical records indicated "[n]o visible bruising or marks," though Wilson remained fully clothed during the examination. Dkt. No. 31-4 at 18, 68; Tichenor Decl. ¶ 14.*fn6
Tichenor instructed the corrections officers to return Wilson to his cell. Compl. ¶ 15; Wilson Dep. at 28-29. Tichenor's shift concluded at 9:00 a.m., after Wilson was returned to his cell. Tichenor Decl. ¶ 15. On the way back to his cell, Wilson requested to speak with King and was placed in a holding area. Compl. ¶¶ 16-17; Wilson Dep. at 30-31; King Decl. (Dkt. No. 31-5) ¶ 6. King spoke with Wilson and granted a cell transfer for Wilson to a bottom bunk. Compl. ¶ 18; Wilson Dep. at 32-33; King Decl. ¶ 11. Wilson contends that he generally and continually complained of intense pain to unnamed corrections officers; however, King states, and the record does not dispute, that Wilson never told King that he was having difficulty breathing or felt extremely ill Compl. ¶ 18; Wilson Dep. at 31; King Decl. ¶ 7. Wilson walked from the holding area to his new cell on his own accord. King Decl. ¶ 12.
During lunch and throughout the afternoon, while in his new cell, Wilson repeatedly requested that the officers on rounds take him back to the infirmary. Compl. ¶ 19-20; Wilson Dep. at 33-36. For approximately six hours his requests were unheeded. Compl. ¶ 19-20; Wilson Dep. at 33-37. At dinner, a corrections officer found Wilson laying unconscious on the floor. Compl. ¶ 21; Wilson Dep. at 35-39. Medical attention was summoned to Wilson's cell where he was eventually awakened by Travers.*fn7 Compl. ¶ 23; Wilson Dep. at 39-42; Travers Decl. ¶¶ 8-9. Wilson was taken to the infirmary whereupon he was approved for transfer to Alice Hyde Medical Center. Compl. ¶¶ 24-25. At this time, Travers was still involved in Wilson's care, monitoring his blood pressure and other vitals and applying an oxygen mask. Wilson Dep. at 45-46; Travers Decl. ¶ 12. While Wilson never met the physician who was on duty and approved his transfer to the hospital, he testified that Dr. Ellis, a defendant,*fn8 was responsible for making that decision. Wilson Dep. (Dkt. No. 31-3) at 8-10. Dr. Ellis made the decision via telephone, pursuant to a telemedicine conference, from his place of employment in Buffalo, New York. Dkt. No. 18-1; see also Tichenor Decl. ¶ 20 (indicating telemedicine conference occurred prior to transfer to Alice Hyde); Weissman Decl. (Dkt. No. 31-8) ¶¶ 6-8.
Upon arrival at Alice Hyde, it was discovered that Wilson required a blood transfusion and emergency surgery because his spleen was ruptured. Compl. ¶¶ 25-28; Tichenor Decl. ¶¶ 21-22.*fn9 A ruptured spleen may occur from a blow to the abdomen or ribs surrounding the abdomen. Dkt. No. 31-4 at 9, 74. Wilson attributes this injury to the attack he suffered from Diaz. Wilson Dep. at 64. Dr. Aronis, a previously terminated defendant, performed the surgery. Compl. ¶¶ 27-30. Wilson remained at Alice Hyde for approximately eleven days prior to his discharge back to Upstate. Compl. ¶ 31; Wilson Dep. at 47. While in the, hospital, Wilson received a Demerol pump for pain, but was told that upon arrival at Upstate he would begin receiving Percocet. Compl. ¶ 31. Wilson was also instructed "to take daily showers to enable him to properly cleanse his surgical area... to help circumvent the possible risk of infection...." Id. ¶ 31; see also Wilson Dep. at 50.
Upon arrival at the Upstate's infirmary, Wilson was not permitted to take a shower for four days and only received Tylenol for pain from Drs. Ellis and Weissman, also a defendant herein, as well as Travers and Tichenor. Compl. ¶¶ 32-33; Wilson Dep. at 50; but see Dkt. No. 31-4 at 69 (explaining that the infirmary has daily showers available and that no order for daily shower after discharge from the infirmary was given). Wilson complained that the Tylenol was not adequately controlling his pain, but his complaints were ignored by the infirmary. Compl. ¶¶ 35-36; Wilson Dep. at 54-56, 61.*fn10 Wilson requested, and was provided, Tylenol #3 ever four hours as needed. Dkt. No. 31-4 at 69. Wilson received pain medication on June 9, 10, 12, 15 and 16 without any further complaints that the medication he was receiving was inadequate. Dkt. No. 31-4 at 69. However, Wilson contends that he complained to Dr. Weissman that he required a prescription pain killer to relieve his pain, but such requests were denied. Wilson Dep. at 55-56, 61-62. Dr. Weissman does not acknowledge that this event happened, and indicates that she only saw Wilson once, on June 8, 2005, when she wrote him an order for a prescription and discharge orders from the infirmary. Weissman Decl. ¶ 12. Wilson remained in the infirmary for approximately one week. Wilson Dep. at 52. When Wilson left the infirmary, he did so on his own accord without any assistive devices. Id. at 57. Wilson was housed in a different cell and never saw Diaz again. Id. at 57-58.
Wilson authored a letter on June 12, 2005 to the Superintendent of Upstate detailing the events occurring prior and subsequent to the alleged attack on May 27, 2005. Dkt. No. 31-4 at 12-15. On August 4, 2005, Wilson received a response explaining that his complaint had been investigated and found to be without merit. Dkt. No. 31-4 at 7, 46, 138. Throughout the investigation, multiple interviews occurred. Tichener reported that Wilson's stomach was not examined while he was in the nurses' station because "he did not compl[ain] about abdominal pain." Dkt. No. 31-4 at 8, 72, 126; see also Dkt. No. 31-4 at 9 (memorandum from Tichenor stating that Wilson "complained of lower back pain," his diagnostic tests were normal, she felt there was nothing wrong with him, and no examination of his abdomen was done because "he did not complain of abdominal pain."). Moreover, defendant King had no recollection of the incident. Dkt. No. 31-4 at 8, 72, 126; Dkt. No. 31-4 at 10 (memorandum from King stating that he did "not recall the exact specific reason for his cell move," but assumed it was probably due to "his complaints about his health and inability to get up onto the top bunk."). The August 4 response indicated that Diaz denied ever assaulting Wilson, Wilson's actions of "initially fabricating the story of how [he was] injured, and subsequent personnel actions of sending Wilson to a different cell and providing him further medical attention failed to "substantiate allegations of inappropriate behavior by medical and/or security staff in handing th[e] incident." Id. Wilson responded on August 7, 2005, again explaining the reasons for his initial lie, the incredibility of Diaz's responses, and the deliberate indifference displayed by staff. Dkt. No. 31-4 at 3-6.
Wilson also filed an inmate grievance on July 29, 2005, stating that he was subjected to medical and facility wrongdoings that resulted in him being assaulted and almost killed.
Dkt. No. 31-4 at 49, 103-07.*fn11 Wilson's grievance and appeal were both denied based upon an investigation which concluded that there was no evidence to support Wilson's allegations of misconduct. Id. at 43, 49, 53, 56-57, 83-88, 107-11, 115-23. Wilson also filed another grievance on August 5, 2005, seeking medical attention from someone other than Tichenor as she was incompetent and unable to adequately treat his chronic back pain. Id. at 91-92. The grievance was denied, citing Tichenor's long history of treating Wilson and finding nothing objectively wrong with him and Wilson's history of drug abuse and polypharmacy as support for Tichenor's recurrent decision to "refrain from [prescribing narcotic pain]... medication as much as possible." Id. at 93.*fn12 The grievance was appealed, and the appeal was denied. Id. at 89-101. This action followed.
Wilson contends that his Eighth Amendment rights were violated when defendants were deliberately indifferent to his serious medical needs regarding his ruptured spleen. Liberally construing Wilson's complaint, he has also alleged that defendant King failed to protect him from Diaz in contravention of the Eighth Amendment. Defendants contend that Wilson's constitutional claims are meritless, he has failed to establish Dr. Weissman's personal involvement, and they are entitled to qualified immunity.
A motion for summary judgment may be granted if there is no genuine issue as to any material fact if supported by affidavits or other suitable evidence and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 ...