The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
In this pro se prisoner civil rights action, filed pursuant to 42 U.S.C. § 1983, Plaintiff Jose Ramos alleges that Defendants violated his Eighth Amendment rights by denying, delaying or providing inadequate medical care for his serious medical need. Dkt. No. 1, Compl. Now before this Court is Defendants' Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56(a). Dkt. No. 34. Defendants argue that summary judgment should be granted because:
(1) Plaintiff has failed to state a constitutional claim for deliberate indifference to any serious medical need; and (2) Defendants are entitled to qualified immunity. See Dkt. No. 34-7, Defs.' Mem. of Law. Plaintiff opposes the Motion. Dkt. No. 37. For the reasons that follow we recommend that Defendants' Motion for Summary Judgment be GRANTED.
Pursuant to FED. R. CIV. P. 56(a), summary judgment is appropriate only where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with [ ] affidavits, if any," that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992).
To defeat a motion for summary judgment, the non-movant must set out specific facts showing that there is a genuine issue for trial, and cannot rest merely on allegations or denials of the facts submitted by the movant. FED. R. CIV. P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are "more than mere conclusory allegations subject to disregard . . . they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion" and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Furthermore, where a party is proceeding pro se, the court must "read [his or her] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), accord, Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Nonetheless, mere conclusory allegations, unsupported by the record, are insufficient to defeat a motion for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).
Except where noted, the following facts are undisputed.
At all times relevant in this action, Plaintiff was an inmate at Shawangunk Correctional Facility (hereinafter "Shawangunk"). See Compl. From October 1, 2007 until May of 2009, Defendant Maryann Genovese, M.D., was the Facility Health Director at Shawangunk, and one of Plaintiff's treating physicians at the facility. Dkt. No. 34-2, Defs.' 7.1 Statement at ¶¶ 1 & 9. Beginning on March 21, 2008, Plaintiff also received care from Defendant Jon Miller, M.D., a part-time physician who provided medical care to inmates at Shawangunk as required. Id. at ¶¶ 8, 9, & 11. Dr. Miller is not a "Hub Medical Director" nor a Regional Medical Director ("RMD"), and he never supervised Dr. Genovese. Id. at ¶ 7. While incarcerated at Shawangunk, Plaintiff received treatment for several medical conditions including low back pain, psoriasis, shoulder problems, pulmonary problems, and foot problems. Id. at ¶ 9. However, it is the treatment of Plaintiff's low back pain that spawned the instant action. See generally Compl.
Medical care at Shawangunk is provided through a managed care health system. Defs.' 7.1 Statement at ¶ 2. Under this system, an inmate with a medical issue first meets with a registered nurse who identifies the inmate's medical issue(s) and reviews his or her medical history. Id. The nurse then performs triage, and assesses what medical services are required based on the nature of the inmate's complaint and the urgency of the inmate's medical needs. Id. If the nurse deems it necessary, an appointment can be made for the inmate to see a physician. Id. at ¶ 3. If a treating physician believes that an inmate requires specialized health care, e.g., physical therapy, diagnostic tests such as a Magnetic Resonance Imaging test ("MRI"), or a consultation with an outside specialist, the physician can issue a request which is then reviewed by the Contracted Care Manager ("CCM"). Id. at ¶ 5. The physician can specify the urgency of the treatment in the request, i.e., a physician can request that specialty care be provided "soon," meaning it is needed within two weeks, or "routine," meaning it can wait more than two weeks. Id. at ¶ 6. However, a request other than routine must include a specific medical reason for the urgency, or be changed to "routine." Id. The CCM will either approve the request or refer it to a Regional Medical Director ("RMD") for a final determination of whether such care will be provided. Id. at ¶ 5.
On October 1, 2007, Plaintiff reported to Dr. Genovese that he was experiencing issues with his right shoulder, as well as numbness in his right leg. Dkt. No. 34-6, Brian J. O'Donnell, Esq., Affirm., dated June 1, 2012, Ex. 1, Certified Copy of Portions of Ramos's Ambulatory Health R. (hereinafter "AHR") at pp. 1 & 2. An MRI of Plaintiff conducted in 1998 and reviewed by Dr. Genovese revealed "spinal stenosis  herniated disc." AHR at p. 2. On October 10, Plaintiff met with Dr. Genovese and complained of numbness in his right leg which was connected to pain in his "lumbosacral spine." They discussed Plaintiff's "progressive degenerative disc disease" and Dr. Genovese determined that Plaintiff would probably need another MRI.*fn1 Dkt. No. 34-3, Maryann Genovese, M.D., Aff., dated June 1, 2012, at ¶ 13; AHR at p. 3. Plaintiff was experiencing pain while walking or standing but the pain would go away while he was lying down. Pl.'s Opp'n at p.
8. On October 15, Dr. Genovese conducted some "clinical tests" on Plaintiff and concluded that he "probably had moderate to severe degenerative disc disease in his lumbosacral spine;" she then scheduled an MRI. Genovese Aff. at ¶ 14; AHR at pp. 4--5.
On November 20, 2007, Plaintiff underwent an MRI. See AHR at p. 7; Genovese Aff. at ¶ 15 & Ex. 5, MRI Report from Multi Diagnostic Serv. Inc. (hereinafter "2007 MRI Report"). The specialist that interpreted the MRI noted that Plaintiff presented a "[m]oderate central canal stenosis at L4-L5 . . . [and] [s]mall disc herniation on the right at L5-S1." 2007 MRI Report. Dr. Genovese discussed those results with Plaintiff on December 5. AHR at p. 7; Genovese Aff. at ¶ 15.
On February 1, 2008, Plaintiff went to sick-call complaining of chronic persistent pain. AHR at p. 10. On February 15, Plaintiff again reported to sick-call claiming he needed to see the doctor about his back pain; a doctor's appointment was made for February 26, 2008. Id. at p. 11. On February 26, Dr. Genovese confirmed her earlier diagnosis, recommended that Plaintiff attend physical therapy (hereinafter "PT"), and that he take Neurontin for the pain. Id. at pp. 11--12. Plaintiff agreed to go to PT, but agreed only to consider taking the Neurontin, stating that he did not want to report to medical in order to receive the medication. Id. at p 12. Dr. Genovese submitted a "routine" request for an initial evaluation with a physical therapist that was approved the next day.
On March 21, 2008, Plaintiff met with Dr. Miller who performed a full physical checkup of Plaintiff. Defs.' 7.1 Statement at ¶ 11; AHR at pp. 14--15; Pl.'s Opp'n, Ex. 2, Lt. to Dr. Genovese, dated Apr. 7, 2008. Dr. Miller reviewed Plaintiff's medical records including Plaintiff's 1998 MRI, Miller Aff. at ¶ 8, and during the examination, Plaintiff reported experiencing "chronic back pain."
On April 7, 2008, Plaintiff wrote a letter to Dr. Genovese explaining that he had not yet received any PT for his back. Pl.'s Opp'n, Ex. 2. On April 9, Plaintiff saw the Physical Therapist for an initial evaluation of his low back. Miller Aff., Ex. 3 at (unnumbered) p. 24. The Physical Therapist's report noted that Plaintiff "will benefit from on going PT for pain management" and recommended PT twice a week, for four weeks. Id. at (unnumbered) pp. 24 & 25. The Physical Therapist 's report states, "please schedule ASAP" and the DOCCS computer printout notes that the need for a follow-up was "urgent." Id. On April 22, Defendant Genovese submitted a request for PT that mirrored the recommendation of the Physical Therapist, including the Physical Therapist's recommendation that the care be provided "soon." Genovese Aff. at ¶ 10 & Ex. 3 at (unnumbered)
p. 1. The CCM denied this request noting "PLEASE PROVIDE MEDICAL RATIONALE FOR 'SOON' URGENCY OR CHANGE TO ROUTINE. REVIEW OF [PATIENT'S MEDICAL RECORDS] INDICATES [PATIENT] HAS [HISTORY] OF CHRONIC LOW BACK PAIN." Id., Ex. 3 at (unnumbered) pp. 1--2. On May 1, the request was approved as "routine." Id., Ex. 4.
On May 14, 2008, Plaintiff wrote a letter to Dr. Genovese requesting an appointment and informing her that although the Physical Therapist promised on April 9 that she would try and schedule him for an appointment sometime that week, five weeks had passed and he still had not seen the physical therapist. Pl.'s Opp'n, Ex. 3, Lt. dated May 14, 2008. On May 16, Plaintiff reported to sick-call that he had not yet seen the Physical Therapist but, he was told that he was already scheduled for physical therapy that day. AHR at p. 18. Beginning on May 16, Plaintiff started receiving regular physical therapy treatments for his lower back pain including appointments on May 21, 23, 28, and 30, as well as on June, 4, 6, and 11. Pl.'s Opp'n at p. 8; Miller Aff., Ex. 3 at (unnumbered) pp.12 & 16--22.
Although he occasionally reported "some relief," "mild relief," or "temporary relief," from the PT, Miller Aff., Ex. 3 at (unnumbered) pp. 12, 16,17,19, 20& 22, Plaintiff consistently told the Physical Therapist that he was continuing to experience pain, id. at (unnumbered) pp. 12 & 16--22. On June 6, 2008, the Physical Therapist noted that "symptomatic management of radiating pain does not appear to be helpful" and recommended that after one more week of PT, Plaintiff should discontinue PT and return to his primary care physician for further medical evaluation and treatment. Id. at (unnumbered) p. 16. Approximately one week later, on June 11, the Physical Therapist made a similar notation. Id. at (unnumbered) p. 12.
On June 10, 2008, one day prior to his last physical therapy treatment, Plaintiff met with Dr. Miller. AHR at p. 19; Miller Aff. at ¶ 8. Plaintiff contends that at this appointment Dr. Miller informed him that he would schedule him for an appointment with a back specialist after his physical therapy had been completed. Compl. at ¶ 6(k). On, July 7, 2008, Plaintiff wrote to Dr. Miller informing him that his condition was deteriorating, and that he believed Dr. Miller was denying or delaying his medical care. Compl. at ¶ 6(l). On, July 8, Plaintiff and Dr. Miller met and discussed his back pain. AHR at p. 20. Dr. Miller noted that Plaintiff had "chronic back pain" and was "interested in surgery." ...