The opinion of the court was delivered by: John T. Curtin United States District Judge
Plaintiff brought this action pursuant to 42 U.S.C. § 1983 seeking compensatory damages for the alleged deliberate indifference to his serious medical needs and the deprivation of medical care. Currently pending before the court is the defendant's motion for summary judgment (Item 20).
Plaintiff commenced this action on July 16, 2009 with the filing of a pro se complaint pursuant to Title 42 U.S.C. § 1983 (Item 1). Plaintiff seeks compensatory damages for the alleged deliberate indifference to his medical needs in violation of his rights under the Eighth Amendment to the United States Constitution. He alleges that the defendant, Dr. Lester Wright, denied his request for surgery to his left shoulder to relieve the pain of broken bone fragments caused by a previous injury.*fn1 In an order filed August 24, 2009, plaintiff was granted permission to proceed in forma pauperis (Item 6).
Defendant filed an answer to the complaint on January 11, 2010 (Item 7). On April 16, 2010, with the consent of the parties, the matter was referred to United States Magistrate Judge H. Kenneth Schroeder, Jr. pursuant to 28 U.S.C. § 636(c) for all further proceedings, including the entry of judgment (Item 12). Following the parties' exchange of discovery materials, on December 23, 2010, defendant moved for summary judgment pursuant to Fed. R. Civ. P. 56, arguing that he lacked any personal involvement in the plaintiff's medical care (Item 20). The notice of motion contained a "Notice to Pro Se Litigants Opposing Summary Judgment," in which plaintiff was advised that he may not oppose summary judgment simply by relying on the allegations in the complaint. Additionally, plaintiff was warned that if he failed to respond to the motion for summary judgment "on time with affidavits or documentary evidence contradicting the facts asserted by defendant, the Court may accept defendant's factual assertions as true" and enter judgment in favor of defendant. Id.
On January 3, 2011, plaintiff filed a motion seeking an extension of time in which to respond to the motion for summary judgment (Item 23). The court denied the motion as moot, as the time for plaintiff's response had already been extended to February 11, 2011 (Item 24). Thereafter, plaintiff did not file a substantive response to the motion. Instead, he filed four separate documents seeking additional discovery, all after the date on which he was to have filed his response to the motion (Items 25-28). Specifically, he sought the name and the employer of the person who initially denied his surgery (Item 25), the names of all staff members of the office with the responsibility of scheduling inmate appointments with outside specialists and any documents relating to the denial of surgery (Item 26), a statement specifying whether defendant Wright had been informed of the denial of plaintiff's surgery (Item 27), and any documents relating to the denial and subsequent approval of the surgery (Item 28).
On July 17, 2012, the case was transferred to the docket of the undersigned (Item 29). The court has determined that oral argument is unnecessary. For the reasons that follow, defendant's motion for summary judgment is granted, and the complaint is dismissed.
In approximately 2001, plaintiff injured his left shoulder when he was pushed into a wall during an altercation (Item 22, Exh. A, "Felder Dep.," p. 11). He started experiencing intermittent pain in the shoulder in approximately 2004 or 2005. Id., p. 12. Plaintiff was incarcerated at the Attica Correctional Facility ("ACF") in October 2007. In approximately January 2008, the pain became worse, radiating from his neck and shoulder down through his arm and causing numbness in his fingers. Id., p. 16.
On January 15, 2008, plaintiff complained to the medical staff at ACF about his shoulder pain and was given a sling to wear on his left arm. He stated that the sling made the pain worse (Felder Dep., p. 17; Item 21, Exh. A., p. 87). Plaintiff testified that he saw a Physician's Assistant ("PA") at ACF approximately once a month because he suffers from high blood pressure, and would complain of his shoulder pain whenever he saw the PA (Felder Dep., pp. 18 - 19). In July 2008, plaintiff's medical records indicate that he complained of shoulder pain. He was given Motrin for the pain and the PA ordered an xray of his shoulder (Item 21, Exh. A., p. 76). In August 2008, the records indicate that the x-ray showed a widening of the left shoulder AC joint and separated bony fragments. Id., p. 135.
In January 2009, plaintiff again complained of shoulder pain. The PA examined him and noted a full range of motion with pain (Item 21, Exh. A, p. 45). Plaintiff was prescribed Feldine for the pain, and physical therapy. Id. On April 6, 2009, the PA recommended an orthopedic evaluation and continued plaintiff on Valtarin for pain. Id., p. 41.
On May 14, 2009, plaintiff was evaluated by orthopedic surgeon Gerald Coniglio (Item 21, Exh. A., pp. 629-630). Dr. Coniglio recommended a joint resection. Id. Approximately one week later, plaintiff asked the nurse at ACF about the surgery and was told that the request for surgery had been denied. Id., p. 39; Felder Dep., p. 31.
Plaintiff filed a grievance relating to the denial of his surgery on May 21, 2009 (Felder Dep., p. 40). Thereafter, the surgery was approved and was performed on July 26, 2009. Id., p. 41; Item 21, Exh. A., p. 626. Following the surgery, plaintiff was prescribed pain medication and physical therapy (Felder Dep., pp. 43-44). He still has occasional pain, but "nothing like prior to the surgery." Id., p. 47.
In support of the motion for summary judgment, Dr. Lester Wright stated that, at all times relevant to this lawsuit, he was the Deputy Commissioner and Chief Medical Officer of the New York State Department of Corrections ("DOCS") (Item 21, ¶ 1). He was not involved in the plaintiff's personal care at ACF, had no knowledge of the events alleged by plaintiff in this case, and did not create or endorse any policy that allowed the alleged events to occur. Id., ¶¶ 7-9. Dr. Wright reviewed plaintiff's medical records and noted that the treatment of plaintiff's shoulder injury, over the course of one year and seven months, "followed the accepted course of starting with the most conservative treatment (i.e. a sling and medication), followed by ...