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Jose Rafael Urena, Pro Se v. Yan Wolfson

March 20, 2012

JOSE RAFAEL URENA, PRO SE
PLAINTIFF,
v.
YAN WOLFSON, M.D., NEW YORK DOWNTOWN HOSPITAL, AND ROBERT BEAUDOUIN, M.D.,
DEFENDANTS.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

MEMORANDUM & ORDER

On December 9, 2008, Jose Urena ("plaintiff") commenced this pro se action in connection with allegedly sustained injuries to his bladder, scrotum, and abdomen while incarcerated in 2006 at the Metropolitan Detention Center in Brooklyn, New York, a federal detention center (the "MDC"). Presently before the court are the motions for summary judgment filed by defendant Yan Wolfson, M.D. ("Dr. Wolfson") and defendant New York Downtown Hospital ("NYDH") (collectively, "defendants") on plaintiff's New York State negligence and medical malpractice claims against them. For the reasons set forth below, defendants' motions for summary judgment are granted in their entirety.

BACKGROUND*fn1

On December 9, 2008, plaintiff commenced this pro se action in the Southern District of New York against the MDC, Robert Beaudouin, M.D. ("Dr. Beaudouin"), then a physician at the MDC, Dr. Wolfson, and NYDH alleging constitutional violations pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) ("Bivens"), and negligence and medical malpractice claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq., and New York State law. (See generally ECF No. 4-3, Complaint.) After the case was transferred to this court on March 11, 2009, an Amended Complaint was filed on November 2, 2009*fn2 , and discovery was completed, the court granted in part and denied in part certain defendants' motions to dismiss and motions for summary judgment on December 6, 2010. (See ECF No. 102, Memorandum and Order ("Urena I")); Urena v. Wolfson, No. 09-CV-1107 (KAM)(LB), 2010 U.S. Dist. LEXIS 128423 (E.D.N.Y. Dec. 6, 2010).

After Urena I, plaintiff's claims remaining before the court are (1) a federal Bivens claim against Dr. Beaudouin alleging that he was deliberately indifferent to plaintiff's serious medical needs in violation of the Eighth Amendment of the United States Constitution, and (2) New York State negligence and medical malpractice claims against Dr. Wolfson and NYDH. (See generally Urena I.) Because the court has original federal question jurisdiction over the Bivens claim against Dr. Beaudouin, the court in its discretion retained supplemental jurisdiction over the related state law claims against Dr. Wolfson and NYDH. See 28 U.S.C. § 1367(a); (Urena I at 30-32).

Presently before the court are Dr. Wolfson's and NYDH's motions for summary judgment on plaintiff's New York State medical malpractice and negligence claims pursuant to Federal Rule of Civil Procedure 56. (See ECF No. 139, Memorandum of Law in Support of Motion for Summary Judgment and Motion to Dismiss by Dr. Wolfson, M.D. ("Wolfson Mem.")*fn3 ; ECF No. 155, Memorandum of Law in Support of Motion for Summary Judgment on Behalf of NYDH ("NYDH Mem.").) Plaintiff filed a single opposition to defendants' motions. (See ECF No. 131-3, Memorandum of Law in Support of Motion in Opposition for Motions for Summary Judgment by Dr. Wolfson and NYDH ("Pl. Opp'n").) The defendants subsequently filed reply briefs in support of their respective motions. (See ECF No. 138, Memorandum of Law in Reply to Plaintiff's Opposition by Dr. Wolfson ("Wolfson Reply"); ECF No. 156, Memorandum of Law in Reply to Plaintiff's Opposition and in Further Support of NYDH's Motion for Summary Judgment ("NYDH Reply").)

For the reasons set forth below, the court grants summary judgment in favor of Dr. Wolfson and NYDH on plaintiff's New York State medical malpractice and negligence claims.

Undisputed Material Facts*fn4

The following facts, taken from the parties' statements pursuant to Local Civil Rule 56.1 and accompanying affidavits and exhibits, are undisputed unless otherwise indicated. (See ECF No. 141, Local Rule 56.1 Statement of Undisputed Facts in Support of Motion to Dismiss by Dr. Wolfson ("Wolfson 56.1 Stmt."); ECF No. 148, Local Rule 56.1 Statement of Facts by NYDH ("NYDH 56.1 Stmt."); ECF No. 131-1, Plaintiff's Local Rule 56.1 Statement of Undisputed Facts in Support of Opposing Motion for Summary Judgment ("Pl. 56.1 Stmt.").)

The court has considered whether the parties have proffered admissible evidence in support of their positions and has viewed the facts in the light most favorable to the nonmoving plaintiff. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that, in determining the appropriateness of a grant of summary judgment, . . . the district court in awarding summary judgment, may rely only on admissible evidence." (citations and quotation marks omitted)); Scotto v. Brady, 410 F. App'x 355, 361 (2d Cir. 2010) (summary order) ("'[A] district court deciding a summary judgment motion has broad discretion in choosing whether to admit evidence,' and . . . '[t]he principles governing admissibility of evidence do not change on a motion for summary judgment.'" (quoting Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 264 (2d Cir. 2009))). Finally, the court has also considered other materials in the record that have not been cited by the parties. See Fed. R. Civ. P. 56(c)(3).

In Urena I, the court set forth in detail the undisputed material facts relevant to the motions then before the court, which are also relevant here and which have not since materially changed. (See Urena I at 4-7.) Although the court assumes the parties' familiarity with the undisputed facts set forth in Urena I, because the parties have submitted additional Local Rule 56.1 statements and affidavits in connection with the motions presently before the court, the court will briefly set forth the relevant undisputed material facts.

From July 2005 until at least December 2006, plaintiff was an inmate at MDC. (NYDH 56.1 Stmt. ¶ 2; Pl. 56.1 Stmt. ¶ 1; ECF No. 150, Transcript of Deposition of Jose Urena dated November 3, 2009 ("Urena Dep. Tr.") at 20.) On September 21, 2006, the Bureau of Prisons (the "BOP") brought plaintiff to Dr. Wolfson's office at NYDH for the first time, where Dr. Wolfson took a history and conducted an examination that revealed the possibility of bladder cancer. (ECF. No. 154-1, Affidavit of Dr. Wolfson ("Wolfson Aff.") ¶ 6.) At this time, Dr. Wolfson also ordered a urinalysis/urine cytology and an abdominal/pelvic Computerized Axial Tomography (CAT) scan with and without contrast to aid in the diagnosis, the results of which he received on September 28, 2006. (Id.)

On October 5, 2006, the BOP brought plaintiff to Dr. Wolfson's office at NYDH a second time, where Dr. Wolfson performed a cystoscopy that revealed two polypoid lesions, confirming the diagnosis of bladder cancer. (Id. ¶ 7; Wolfson 56.1 Stmt. ¶ 3; NYDH 56.1 Stmt. ¶ 4.) During this visit, Dr. Wolfson discussed the risks, benefits, and alternatives of a Trans-Urethral Resection of Bladder Tumor (TURBT) procedure with plaintiff, for which he subsequently signed a consent form confirming the same. (Wolfson Aff. ¶ 7.)

On November 2, 2006, the BOP once again brought plaintiff to NYDH, where he was admitted by Dr. Wolfson for a TURBT, which Dr. Wolfson performed on the same day. (NYDH 56.1 Stmt. ¶¶ 4-6; Wolfson 56.1 Stmt. ¶ 4; Pl. 56.1 Stmt. ¶ 5.) On November 3, 2006, after an overnight stay at NYDH, plaintiff's catheter was removed, he was able to urinate, and his urine was documented to be amber-colored, blood-free, and without any clots. (NYDH 56.1 Stmt. ¶ 7.) Accordingly, on November 3, 2006, plaintiff was ...


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