ANTONIO COLE, Plaintiff, Pro Se, Auburn Correctional Facility, Auburn, NY.
HON. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, DAVID L. COCHRAN, ESQ., Assistant Attorney General, Albany, NY, Attorney for Defendants.
REPORT-RECOMMENDATION and ORDER
RANDOLPH F. TREECE, Magistrate Judge.
Pro se Plaintiff Antonio Cole brings this civil rights action, pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his Eighth and Fourteenth Amendment rights by discontinuing his prescription pain reliever after five doses of the medication were found in his cell. See generally Dkt. No. 14, Am. Compl. Defendants now move for Summary Judgment. Dkt. No. 61. Plaintiff opposes the Motion. Dkt. No. 66. For the reasons that follow we recommend that Defendants' Motion for Summary Judgment be GRANTED.
I. STANDARD OF REVIEW
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 [FED. R. CIV. P. 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).
At all times relevant to the Amended Complaint, Plaintiff was an inmate at Auburn Correctional Facility ("ACF"). Dkt. No. 66, Antonio Cole Aff. (hereinafter "Cole Aff. 1"),  dated Dec. 5, 2012, at ¶ 1. In February of 2008, Plaintiff was diagnosed with "disc protrusion/herniation at the L4-5 level with moderate to severe, if not severe, central stenosis... [and] [d]isc bulge at the L3-4 level." Am. Compl., Ex. A, MRI Imaging Report (hereinafter "MRI Rep."), dated Feb. 12, 2008. Prior to June 17, 2010, Plaintiff received various forms of treatment at ACF for his back pain, including prescription and over-the-counter medications, physical therapy, an extra mattress, x-rays, an MRI, and steroid injections. Cole Aff. 1 at ¶¶ 3-7. By June 17, 2010, Plaintiff's treatment regiment included the prescription drugs Neurontin and Ultram. Id. at ¶ 8.
On June 17, 2010, guards at ACF found five white pills in an unlabeled medication bag in Plaintiff's cell, that were later identified as Ultram by a nurse. Id. Defendant Dr. Kooi was telephoned, and Dr. Kooi ordered Plaintiff's Ultram prescription be discontinued. See Dkt. No. 62-2, Portions of Plaintiff's Ambulatory Health R. (hereinafter "AHR") at p. 20. The following morning, June 18, a nurse gave Plaintiff his Neurontin, and informed him that his Ultram prescription had been discontinued because of the pills that were found in his cell. Cole Aff. 1 at ¶ 9. Later that evening, Plaintiff experienced trouble sleeping, increased pain in his lower back, and pain in his right testicles and right leg. By June 28, 2010, Plaintiff was "unable to put on [his] shoes, stand up for the count, ... [or] sit without experiencing extreme pain." Id. at ¶ 10.
On July 7, 2010, Plaintiff informed Defendant Nurse O'Connor-Ryerson that he "was in extreme pain and that [he] needed the ultram reinstated, if not, [he] would be in bad shape." Defendant O'Connor-Ryerson later sent Plaintiff Tylenol for his pain. Id. at ¶¶ 12-13. Thereafter, Plaintiff regularly complained to ACF medical staff that he was experiencing severe pain and/or that he needed his Ultram prescription to be reinstated. See, e.g., AHR at pp. 10-19. Between June 17, 2010, when Plaintiff's Ultram prescription was discontinued, and April 12, 2011, the date Plaintiff filed his Amended Complaint, his treatment at ACF included an extra mattress, Neurontin, Tylenol, and a TENS unit. See generally id. at pp. 10-20.
On June 28, Plaintiff filed a grievance claiming that the discontinuation of his Ultram constituted deliberate indifference to his serious medical needs. Cole Aff. 1 at ¶ 11; Am. Compl., Ex. C, Inmate Grievance, dated June, 28, 2010. That grievance was denied and Plaintiff appealed the decision. Eventually, Plaintiff's grievance was reviewed and ultimately denied by Defendant Graham, ACF's Superintendent. Cole Aff. 1 at ¶¶ 14 & 16. In addition, Plaintiff wrote a letter directly to Defendant Wright the Chief Medical Officer at the Department of Corrections and ...