United States District Court, W.D. New York
DECISION AND ORDER
CHARLES J. SIRAGUSA, District Judge.
This is an action pursuant to 42 U.S.C. § 1983 in which prison inmate Carlos Varela ("Plaintiff") alleges that Defendant, a Nurse Administrator at Gowanda Correctional Facility ("Gowanda"), violated his federal constitutional rights by failing to provide appropriate medical treatment for his "groin pain." Now before the Court is Defendant's motion for summary judgment (Docket No. [#11]). The application is granted and this action is dismissed.
The Complaint [#1] alleges that beginning in September 2013, while at Gowanda, Plaintiff began complaining to the facility medical staff about groin pain. The Complaint indicates that Plaintiff was seen for this condition, through "sick call and emergency call, " "at least a dozen times." However, the Complaint indicates that Plaintiff's pain persisted. Plaintiff's primary contention is that his request to be treated by "a specialist" at "a[n] outside hospital" was not granted. Notably, the Complaint does not mention Defendant, or any other person, by name, except in the caption. Instead, the factual portion of the Complaint merely refers to "medical staff."
On September 18, 2014, Defendant filed the subject motion for summary judgment [#11]. The motion is supported by, inter alia, an affidavit [#11-4] from Defendant, indicating the following: 1) she never examined Plaintiff; 2) she does not have authority to approve or deny requests for medication, consultations or medical procedures; and 3) her involvement with Plaintiff's medical care was limited to her writing two letters to him in response to his correspondence. Plaintiff's and Defendant's letters are contained in the record.
Defendant's first letter, dated October 28, 2013, which was sent in response to a request by Plaintiff for a second opinion, directed Plaintiff's attention to the Department of Corrections and Community Supervision's ("DOCCS") Health Policy No. 7.02, entitled "Inmate Provider of Choice." That policy, which Defendant provided to Plaintiff, stated, in pertinent part, that inmates have the opportunity to request a consultation with a doctor of the inmate's own choosing, at the inmates' own cost.
Defendant's second letter, dated December 3, 2013, was sent in response to a letter from Plaintiff in which he stated that he was still experiencing groin pain, despite having been seen by a doctor on six occasions. Plaintiff's letter further indicated that due to his continued complaints, a nurse had contacted an "outside doctor, " who had performed ultrasound testing of Plaintiff's testicles, the results of which Plaintiff was still awaiting. Plaintiff complained, though, that he believed the doctor should have performed the ultrasound testing on his hips and not his testicles. In response to such letter, Defendant wrote: "The care you are receiving is appropriate. You have been evaluated several times by the nurses, NP, and doctor. Lab tests do not indicate any abnormalities. We are awaiting results from the ultrasound. You will receive notification of the results via mail."
In addition to this correspondence, Defendant submitted portions of Plaintiff's facility medical record which, she maintains, "reflect [that] Plaintiff has now been seen by several doctors, and has had bloodwork at least three times, in addition to x-rays, an ultrasound and cytoscopy." Defendant further states that such records indicate that Plaintiff has not complained about groin pain since June 2014, although such fact is not dispositive of Plaintiff's claim, since he appears to be complaining about the period between September 2013 and May 2014.
On October 21, 2014, the Court issued a Motion Scheduling Order [#15], directing Plaintiff to file and serve any response to the motion by November 21, 2014. The Motion Scheduling Order was mailed to Plaintiff at Gowanda, which is the address he provided,  and was not returned. However, Plaintiff has not filed any response to Defendant's motion.
Summary judgment may not be granted unless "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993). Moreover, since Plaintiff is proceeding pro se, the Court is required to construe his submissions liberally, "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
At the outset, the Court must consider how much solicitude to extend to Plaintiff, in light of the fact that he did not respond to Defendants' motion. Plaintiff signed his complaint under penalty of perjury, and generally, "[a] verified complaint is to be treated as an affidavit for summary judgment purposes, and therefore will be considered in determining whether material issues of fact exist, provided that it meets the other requirements for an affidavit under Rule 56(e)." Colon v. Coughlin, 58 ...