The opinion of the court was delivered by: John T. Curtin United States District Judge
This case has been transferred to the undersigned for all further proceedings. Plaintiff, Martin Luther Baskerville, proceeding pro se, brought this action for money damages pursuant to 42 U.S.C. § 1983, based on alleged unconstitutional conditions of his confinement as an inmate in the care and custody of the New York State Department of Corrections and Community Supervision ("DOCCS")*fn1 at Five Points Correctional Facility ("Five Points") in Romulus, New York. Defendants Kristin E. Tremlett, Robert L. Macomber, and J. Peter Gregoire have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (Items 44 & 65) seeking dismissal of the complaint in its entirety.
For the reasons that follow, defendants' motions are granted.
Plaintiff has been in the care and custody of DOCCS since approximately January 1991. See Item 48 (Zimmermann Decl.), Exh. C (Plaintiff's Dep. Tr.), pp. 7-8. He was transferred from Mid-State Correctional Facility ("Mid-State") to Five Points on December 30, 2005. At that time, defendant Gregoire was the Facility Heath Services Director (see Item 68, Gregoire Decl.), defendant Macomber was a Physician Assistant ("PA") (see Item 50, Macomber Decl.), and defendant Tremlett was a Registered Nurse ("RN") (see Item 49, Tremlett Decl.) at Five Points. Five Points is a "double bunk" facility, at which some inmates are assigned to double occupancy cells with upper and lower bunk beds. Inmates' requests for assignment to the often-preferred lower bunk are determined by the facility's medical staff pursuant to DOCCS' Division of Health Care Services Policy No. 1.49.*fn2
Upon his arrival at Five Points, plaintiff was taken to the infirmary for medical assessment due to his HIV positive status. He was interviewed and examined by Nurse Tremlett. Item 47 (Defendants' Statement of Undisputed Facts), ¶ 14; see also Item 49, ¶¶ 7-11. Plaintiff claims that he advised Nurse Tremlett of his history of back problems and requested assignment to a lower bunk. Item 55 (Amended Compl.), ¶ 10. However, Nurse Tremlett completed DOCCS Form 3117, "Screening and Physical Assessment for Placement in a Double Cell," without indicating "any known medical indications requiring him to be placed in a bottom bunk bed .." Item 48, Exh. A, Bates No. 1854.*fn3
Plaintiff remained in the Five Points infirmary for two or three days following admission. Item 47, ¶ 42. Plaintiff's Ambulatory Medical Record ("AHR") reflects that Nurse Tremlett saw him again on January 1, 2006 (the day after his transfer), at which time she noted her concern that plaintiff's property had not yet arrived from Mid-State, leaving him without his needed medications. Bates No. 2377. Nurse Tremlett called PA Macomber, the facility's "special[ist] in the treatment of HIV positive inmates .," Item 50, ¶ 8, who ordered replacement medications from stock. See id. at ¶¶ 24-26; Item 49, ¶¶ 24-28.
Plaintiff's AHR further reflects that, upon review of plaintiff's chart on January 4, 2006, PA Macomber placed plaintiff on "call out" for evaluation of his medical status, which took place on February 2, 2006. Bates No. 2378, 2381. PA Macomber reported on DOCCS Form 3113, "HIV Interim Visit Sheet," that plaintiff was stable on antiretroviral therapy ("ART"), with multiple other issues not related to his HIV status, including complaints of back problems. Bates No. 2381. Plaintiff requested a back brace, but PA Macomber noted "no consult to indicate need," and that the results of two lumbar spine x- rays were within normal limits. Id. The medical records reflect no indication that plaintiff made a specific request for a lower bunk permit until February 15, 2006, when PA Macomber met with plaintiff in his cell. Bates No. 2382. Following this visit, PA Macomber consulted with Dr. Gregoire and obtained approval for an MRI to document plaintiff's need for lower bunk placement. Item 50, ¶ 44.
The MRI was performed on February 27, 2006. See Item 49, Exh. A, pp. 2-3. On that same day, plaintiff was also seen by Five Points' medical staff for an emergency sick call, during which he demanded a lower bunk permit. The AHR entry for that date indicates that medical personnel on duty informed plaintiff that emergency sick call was not for making a lower bunk permit request, to which plaintiff responded, "I'm suing you all." Bates No. 2382. The AHR also indicates that plaintiff had a 6:00 a.m. sick call on February 28, 2006, at which time he reported that he had fallen from his top bunk on the previous day. He told the RN on duty that he filled out an injury report, but the RN noted "no report of injury in A Block log book per security." Id.
On March 1, 2006, PA Macomber received the report of plaintiff's MRI, which indicated:
There is discogenic disease, spondylosis and diffuse posterior disc bulges from L2-L3 through L5-S1. .
The patient has undergone a prior left hemilaminectomy at L4-L5 and there is abnormal soft tissue about the left ventral aspect of the thecal sac and extending into the left anterior recess, compromising the left L5 and L4 nerve roots. This probably represents a residual or recurrent HNP or epidural fibrosis. . There is also a moderate degree of central canal spinal stenosis at this level.
Bates No. 1439-40. On March 8, 2006, PA Macomber performed a physical examination of plaintiff. He noted that plaintiff was status post spinal fusion, with radiculopathy and decreased strength in his left leg. He discussed the MRI and recent lab results with plaintiff, and ordered follow-up lab work; indicated that plaintiff was adhering to ART, and that referral to neurology would be appropriate; and recommended approval of plaintiff's request for a lower bunk permit. Bates No. 2383-84.
The AHR further reflects that plaintiff was seen at Upstate Medical University on June 28, 2006, for a neurological consultation by Peter Kim, M.D. Bates No. 2390-91. Plaintiff reported his history of spinal surgery, and that he had been doing well until he fell from his upper bunk in February. His chief complaint was severe left lower extremity pain. Upon review of the MRI, Dr. Kim recommended left L4-5 microdiscectomy, which was performed on September 1, 2006. See Item 1, Ex. I. At a follow-up outpatient visit on October 4, 2006, plaintiff was "doing quite well postoperatively." Bates No. 2389.
Plaintiff filed this action pro se on September 21, 2007. Item 1. Following retention of counsel,*fn4 and based on facts revealed during the parties' depositions, the court granted plaintiff leave to amend the complaint in order to add Dr. Gregoire as a defendant. See Item 28. In the amended complaint, plaintiff alleges that Nurse Tremlett's failure to report and document plaintiff's back problems on his arrival at Five Points on December 30, 2005, and PA Macomber's and Dr. Gregoire's failure to approve his request for a lower bunk permit until March 8, 2006, resulted in his fall from his top bunk and caused further injury to his back. Item 55, ¶ 21. Plaintiff claims that defendants' conduct amounts to deliberate indifference to his serious medical needs in violation of the ...