United States District Court, S.D. New York
OPINION AND ORDER
JESSE M. FURMAN, District Judge.
Pro se Plaintiff Sammie Curtis brought this action against eleven current or former employees of the New York State Department of Corrections and Community Supervision ("DOCCS") at Sing Sing Correctional Facility ("Sing Sing"), alleging that they were deliberately indifferent to his medical needs in violation of the Eighth Amendment. On May 9, 2013, the Court dismissed the operative complaint (specifically, the Fourth Amended Complaint (Docket No. 55), referred to herein as "Complaint" or "Compl.") with respect to four of those Defendants. (Docket No. 85). Six of the remaining seven Defendants - Dr. Jonathan Holder, Dr. Razia Ferdous, Barbara Furco, Dr. Maryann Genovese, Dr. Aman Bakshi, and Philip Heath - now move for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docket No. 109). For the reasons that follow, the motion is GRANTED and the Complaint is dismissed with respect to those six Defendants. Further, Plaintiff is ordered to show cause why the Complaint should not be dismissed against the last Defendant, Dr. John Perilli, who is also representing himself and did not file a summary judgment motion. ( See Docket No. 69).
The facts relevant to this motion are largely uncontested. In support of their motion, Defendants filed a Statement of Undisputed Facts, along with eight supporting declarations. (Docket Nos. 111, 113-120). Pursuant to this Court's Local Rule 56.2, Defendants served Plaintiff with notice that, in opposing their motion for summary judgment, Plaintiff could not rely on the allegations in his Complaint, but was required to submit evidence countering the facts asserted by Defendants and raising specific facts to support his claims. (Docket No. 110). In response, Plaintiff did not file a statement of undisputed facts as required by Local Rule 56.1, but submitted a four-page, unsworn declaration in opposition to Defendants' motion for summary judgment, as well as six pages of black-and-white photographs, and a "statement of disputed factual issues." (Docket No. 123). Although the fact that Plaintiff's declaration is unsworn would permit the Court to disregard its allegations entirely, in light of Plaintiff's pro se status, the Court will consider the declaration, on the assumption that Plaintiff would submit the same declaration in proper form if given the opportunity to do so. See, e.g., Alston v. Butkiewicus, No. 09 Civ. 207 (CSH), 2010 WL 1839939, at *1 n.1 (D. Conn. May 7, 2010); Shah v. Kuwait Airways Corp., 653 F.Supp.2d 499, 506 (S.D.N.Y. 2009).
A. The Parties
Plaintiff is a New York state prisoner who has been incarcerated at Fishkill Correctional Facility since being transferred there from Sing Sing on March 14, 2013. (Declaration of Counsel Supp. Defs.' Mot. Summ. J. ("Wen Decl.") (Docket No. 120), Ex. G). Defendants are all current or former employees at Sing Sing. Dr. Holder is an orthopedic surgeon who, since 1992, has been employed as an orthopedic consultant by DOCCS. (Decl. Jonathan Holder Supp. Defs.' Mot. Summ. J. ("Holder Decl.") (Docket No. 117) ¶¶ 3-4). He attends monthly clinics where he sees inmate patients at various facilities, including Sing Sing, on a rotating basis. ( Id. ¶ 4). Dr. Ferdous and Dr. Bakshi served as physicians at Sing Sing, where they were randomly assigned to serve as primary care providers for certain inmates. (Decl. Razia Ferdous Supp. Defs.' Mot. Summ. J. ("Ferdous Decl.") (Docket No. 119) ¶¶ 3-4; Decl. Aman Bakshi Supp. Defs.' Mot. Summ. J. ("Bakshi Decl.") (Docket No. 116) ¶¶ 3-4). Dr. Ferdous served as Plaintiff's primary care provider from 2010 through -. (Ferdous Decl. ¶ 9; Wen Decl., Ex. O ("Curtis Dep.") 27:18-24). In that role, she was responsible for examining Plaintiff and making any referrals for Plaintiff to receive additional treatment or be seen by outside consultants. ( Id. ¶ 5). Those requests would be reviewed by the Facility Health Services Director (the "FHSD"), and any recommendations by an outside consultant would be reviewed by Dr. Ferdous. ( Id. ¶¶ 5-7). Dr. Genovese served as Sing Sing's FHSD, where her principal role was to supervise the medical staff and review referral requests made by primary care providers. (Decl. Maryann Genovese Supp. Defs.' Mot. Summ. J. ("Genovese Decl.") (Docket No. 115) ¶¶ 4-5). Barbara Furco is a registered nurse, and served as the Nurse Administrator at Sing Sing, where she managed the nursing staff. (Decl. Barbara Furco Supp. Defs.' Mot. Summ. J. ("Furco Decl.") (Docket No. 114) ¶ 3). Finally, Philip Heath was the superintendent of Sing Sing from 2009 to May 2012, where, among other things, he reviewed and referred grievances appealed by inmates. (Decl. Philip Heath Supp. Defs.' Mot. Summ. J. ("Heath Decl.") (Docket No. 118) ¶¶ 2-3).
B. Plaintiff's Medical Treatment
In 2007, Plaintiff fractured his left foot while playing basketball at Sing Sing. (Curtis Dep. 22:25-23:7, 39:16-19). At some point before March 2010, Plaintiff was advised (precisely when and by whom is not clear from the record, but ultimately immaterial) that he should undergo surgery, but he opted instead for a non-surgical course of treatment. (Holder Decl. ¶ 9). By March 2010, however, it became apparent that Plaintiff's foot had not properly healed, and he agreed to undergo surgery. (Wen Decl., Ex. C, D-CURTIS 558, 572; Holder Decl. ¶ 9). On June 21, 2010, Dr. Holder performed mid-foot fusion surgery on Plaintiff's left foot, attempting to fuse Plaintiff's navicular bones, which had collapsed due to a lack of blood supply. (Holder Decl. ¶¶ 10, 12).
Following the surgery, Plaintiff complained of pain and swelling in his left foot. (Holder Decl. ¶ 13). Dr. Holder recommended follow-up X-rays, and the X-rays revealed that screws he had inserted into Plaintiff's foot during the surgery had broken. ( Id.; Declaration in Opposition to Defendants' Motion for Summary Judgment ("Pl.'s Opp'n") (Docket No. 123) ¶ 13). Dr. Holder then performed a second, corrective surgery on March 1, 2011, to replace the broken screws and insert brackets to hold the screws in place. (Holder Decl. ¶ 14; Pl.'s Opp'n ¶ 15). Following that second surgery, Plaintiff complained that he was losing sensation and range of motion in his left foot, and Dr. Holder recommended that additional X-rays be taken. (Holder Decl. ¶ 15). Those X-rays revealed that, incredibly, the hardware inserted into Plaintiff's foot had broken for a second time. ( Id. ¶ 16; Holder Decl., Ex. C, at D-CURTIS 312; Pl.'s Opp'n ¶¶ 18-19). Dr. Holder reported to Plaintiff that he was going to file a report with the manufacturer and stop using their products. (Holder Decl. ¶ 16). Dr. Holder then performed a third surgery on Plaintiff on August 16, 2011 to replace the broken screws and bracket, and recommended three days of bed rest and for Plaintiff to wear a post-operation shoe on his left foot for six weeks. (Holder Decl. ¶ 18; Pl.'s Opp'n ¶ 20; Holder Decl., Ex. A).
Following the third surgery, X-rays confirmed that the surgical hardware remained intact. (Defs.' Statement Pursuant to Local Rule 56.1 ("Defs.' Rule 56.1 Statement") (Docket No. 111) ¶ 69; Wen Decl., Ex K, at D-CURTIS 254, 253, 252, 251, 250, 248). In addition, Dr. Holder recommended certain post-surgical treatment for Plaintiff, including that he use one crutch as a cane and that he be evaluated by the podiatry consultant for arch supports to alleviate foot pain. (Holder Decl. ¶ 22). Following Dr. Holder's recommendations, Dr. Ferdous referred Plaintiff to the prescription footwear consultant, who evaluated Plaintiff for custom-molded orthotics and recommended orthopedic boots. (Wen Decl., Ex. J, at D-CURTIS 278). After a number of fitting sessions, Plaintiff received the boots and orthotics. (Wen Decl., Ex. I; see also Curtis Dep. 9:2-11).
A. Standard of Review
Summary judgment is appropriate when the record demonstrates that there are no genuine disputes as to any material facts and that one party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, that demonstrate the absence of a genuine dispute regarding any material fact. See Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 322. In ruling on a motion for summary judgment, all evidence must be viewed in the light most favorable to the non-moving party, Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004), and the court must "resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought, " Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).
When a summary judgment motion is brought against a pro se litigant, the Court must afford the non-movant with "special solicitude" in the construction of pleadings and motions and in the enforcement of procedural rules. See Tracy v. Freshwater, 623 F.3d 90, 100-04 (2d Cir. 2010) ("[I]n light of the particular difficulties presented by a motion for summary judgment... a district court errs by failing to advise a pro se litigant of the nature of such a motion and the consequences of failing to respond to it properly."). That special solicitude is not unlimited, however, and it does not "relieve [a] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (internal quotation marks omitted). Specifically, a pro se Plaintiff opposing ...