EDWIN PARRA, Plaintiff.
DR. LESTER WRIGHT, et al., Defendants.
DECISION AND ORDER
CHARLES J. SIRAGUSA, District Judge.
Edwin Parra ("Plaintiff") is an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), and Defendants are medical personnel employed by DOCCS. Plaintiff alleges, pursuant to 42 U.S.C. § 1983 ("§ 1983"), that Defendants violated his Eighth Amendment rights by acting with deliberate indifference to his serious medical needs. Plaintiff also asserts claims under the Americans with Disabilities Act ("ADA") and the Rehabilitation Act ("§ 504"). Now before the Court is Defendants' motion (Docket No. [#14]) for summary judgment and Plaintiff's motions [#17] [#34] for appointment of counsel. Plaintiff's motions [#17] [#34] for appointment of counsel are denied, and Defendants' motion for summary judgment [#14] is granted in part and denied in part.
Unless otherw ise indicated, the following are the facts of the case view ed in the light most-favorable to Plaintiff. Plaintiff suffers from degenerative disease in his lumbo-sacral spine, for which he has been receiving pain medications and other treatments while in custody, since approximately 2007. More specifically, MRI testing indicates that Plaintiff has "bulging and disc protrusion, " causing some "nerve root impingement, " which results in low er-back pain. From the record it appears that at all relevant times, various doctors employed by DOCCS have provided Plaintiff with pain medications and physical therapy, and that other times they have also provided him with an elastic back support, an additional mattress and/or a permit allowing him to sleep on the low er bunk of a tw o-bunk cell. The pain medications that Plaintiff has received have varied, and include Ultram, Neurontin, Naproxen, Motrin and other analgesics and non-steroidal anti-inflammatory drugs ("NSAIDS").
Plaintiff believes that the most-appropriate treatment for his condition is a combination of Ultram and Neurontin, as well as a back support brace, a double mattress and a lower-bunk permit. Plaintiff has not always been provided with all of those items, and consequently, he alleges that he was denied appropriate medical treatment at three New York State correctional facilities: Wende Correctional Facility ("Wende"), Lakeview Correctional Facility ("Lakeview") and Southport Correctional Facility ("Southport").
In that regard, Plaintiff indicates that in "early 2010" he was housed at Wende, and later that year he was transferred to Lakeview. Plaintiff was then transferred to Five Points Correctional Facility ("Five Points") for approximately tw o months. Then, in or about April 2011, Plaintiff allegedly committed disciplinary infractions at Five Points, for which he was transferred to Southport. Plaintiff's particular complaints about his treatment at Wende, Lakeview and Southport are set out below.
At Wende, Nurse Practitioner Obertean reduced Plaintiff's pain medications and encouraged him to participate in physical therapy to reduce his pain. An entry in Plaintiff's Ambulatory Health Record ("AHR") dated July 12, 2010, indicates that Orbertean spent 48 minutes conducting a physical examination of Plaintiff. Obertean's notes indicate that her findings did not support Plaintiff's subjective complaints of pain. For example, she stated that Plaintiff was not limping when he entered the exam room, but began limping during the exam. Obertean also indicated that Plaintiff appeared to express exaggerated pain when she lightly touched his back and when she performed a flexion test. On the other hand, Obertean observed that Plaintiff was able to "sit easily in a chair, " cross his legs, remove his socks, and perform other movements. Obertean also noted that Plaintiff's Electromyogram ("EMG") test results were normal. Obertean indicated that as a result of her testing, she decided to "slowly taper" Plaintiff off Ultram and treat him with Motrin instead. She also prescribed a new elastic back brace for Plaintiff. How ever, Obertean denied Plaintiff's requests for an extra mattress and a lower-bunk permit. Plaintiff wrote to Susan Post ("Post"), Deputy Superintendent for Health at Wende, and complained about Obertean. How ever, on October 6, 2010, Post responded, telling Plaintiff that Obertean's treatment was appropriate, and that Plaintiff should "fully participate" in physical therapy, since that was his "best chance... to strengthen [his] core muscles and better control [his] chronic pain."
On October 20, 2010, Nurse Practitioner Larry Wilcox ("Wilcox") wrote to Plaintiff and denied his requests for an additional mattress and for a "low er bunk permit." Wilcox stated that such provisions were not warranted by DOCCS healthcare policies, and that Plaintiff's medications were controlling his pain. Wilcox further indicated that Plaintiff was receiving physical therapy. On November 15, 2010, Dr. Caisley also wrote to Plaintiff concerning Plaintiff's request for a lower bunk permit. Caisley noted that Plaintiff had received physical therapy, and further stated:
In the past another facility may have granted you a [lower bunk] permit and given you other things that you now believe you are entitled to. How ever, my review of our medical record and Health Services Policy 1.49 Low er Bunk Placement indicate that you do not meet the criteria for lower bunk placement. I am enclosing a copy of that policy for your review.... It is clear that you do not meet the guidelines as established in that policy.
Complaint [#1] at p. 52. Plaintiff wrote to Eileen DiNisio ("DeNisio"), DOCCS Regional Health Services Administrator, and complained about his treatment at Lakeview. How ever, on December 21, 2010, DiNisio responded and indicated that Plaintiff's treatment was appropriate. In that regard, DiNisio indicated that Plaintiff was "currently prescribed Neurontin for [his] discomfort."
On April 14, 2011, Plaintiff arrived at Southport, and nurse D. Weed, R.N., performed an initial medical screening. Weed told Plaintiff that he could not have his elastic brace unless it was approved by the facility doctor, Wesley Canfield, M.D. ("Canfield"). Later that day, Canfield initiated a tapering of Plaintiff's Ultram and Neurontin, which had previously been discontinued at Wende and Lakeview, but which had been re-prescribed at Five Points. More specifically, Canfield reduced Plaintiff's existing prescription of 600 mg of Neurontin and 100 mg of Ultram, to 300 mg of Neurontin and 50 mg of Ultram. See, Amended Complaint [#8] at p. 44 (Indicating that the treatment recommendation was to wean Plaintiff from Neurontin and Ultram over a period of seven days). After approximately one week, medical staff at Southport discontinued Plaintiff's prior pain medication prescription altogether, and replaced it with new medications. Specifically, on April 15, 2011, Nurse Practitioner Ben Oakes ("Oakes") prescribed Naproxen and another pain reliever, the name of which is illegible. See, Complaint [#1] at p. 34. Oakes also prescribed the pain medications Flexeril, Voltaren and Feldene, apparently in response to Plaintiff's complaints that the other medications were not effective. Motion to Amend [#6] at p. 2. Oakes also obtained an x-ray of Plaintiff's shoulder, after Plaintiff complained of pain. Amended Complaint [#8] at p. 19. Oakes further requested additional physical therapy for Plaintiff,  but in June 2011, DOCCS denied Plaintiff's request for further physical therapy, because he was not participating in any work programs and he did not have a "clear medical necessity" for such treatment. Motion to Amend [#6] at p. 13. Plaintiff indicates that he wrote to Lester Wright, M.D. ("Wright"), DOCCS Deputy Commissioner and Chief Medical Officer, and Wright's successor, Carl Koenigsmann, M.D. ("Koenigsmann"), about "these problems." Amended Complaint [#8] at p. 19. On July 21, 2011, Dr. Canfield wrote to Plaintiff and explained that he discontinued the Ultram and Neurontin after reviewing Plaintiff's medical chart. Motion to Amend [#6] at p. 17. Canfield further noted that Oakes had been giving Plaintiff "appropriate medication for [Plaintiff's] conditions." Id. Plaintiff also claims that he wrote to Nurse Administrator John VonHagn ("VonHagn"), but "to no avail." Amended Complaint [#8] at p. 17.
Plaintiff further indicates that he wrote to Wendy Lukas, DOCCS Regional Health Service Administrator, but again, "to no apparent avail." Amended Complaint [#8] at p. 17. In that regard, Plaintiff apparently wrote to Lukas in or about May, 2011. On May 20, 2011, Lukas responded in writing, indicating that she had investigated Plaintiff's concerns with Southport's medical staff. Lukas stated, inter alia, that although Southport's staff had discontinued Plaintiff's Naprosyn, they were giving him Voltarin and Flexeril instead. Id. at p. 53. Lukas further instructed Plaintiff to bring his concerns to the Southport medical staff using the established sick-call procedures. Id.
Plaintiff also states that he complained to K. Weaver, R.N. ("Weaver") and "Mr. Clement, " R.N. ("Clement"), when they were working as "sick-call" nurses at Southport. Amended Complaint [#8] at p. 18.
With regard to all of the aforementioned claims at the various correctional facilities, Plaintiff states that he "filed several grievances and has exhausted his remedies on one issue." Amended Complaint [#8] at p. 18 (referring to Exhibit Dof that document). On this point, Plaintiff admits that he did not file any grievances while at Wende or Lakeview, and that the first ...