United States District Court, S.D. New York
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge
Louis Fortunato brought this action pursuant to 42 U.S.C.
§ 1983, alleging that Defendant Dr. Vishwas
Bhopale was deliberately indifferent to
Plaintiff's serious medical needs in violation of the
Eighth Amendment. In particular, Plaintiff alleges that but
for Defendant's substandard medical treatment,
Plaintiff's glaucoma would not have progressed as it did,
to the point where Plaintiff's vision is now compromised.
Defendant has moved for summary judgment, contending
alternatively that (i) there is no genuine dispute of
material fact and he is entitled to judgment as a matter of
law, and (ii) he is entitled to qualified immunity. For the
reasons that follow, Defendant's motion is granted.
A. Factual Background
1. The Parties
times relevant to this case, Plaintiff was an inmate
incarcerated in the DOCCS system. (Def. 56.1 ¶ 1).
Plaintiff was housed at Green Haven Correctional Facility
(“Green Haven”) from approximately January 2007
through May 2011, at which time he was transferred to
Southport Correctional Facility (“Southport”).
(Id. at ¶ 2).
was employed by DOCCS as a physician at Green Haven from
April 2005 through his retirement in February 2016. (Def.
56.1 ¶ 3). Defendant “did not have specialized
training in ophthalmology or optometry.” (Id.
at ¶ 4 (citing Bhopale Decl. ¶¶ 16-17)).
Plaintiff's Medical History at Green Haven
first complained of vision problems to Green Haven's
medical staff on or around December 6, 2007. (Def. 56.1
¶ 5). He was evaluated in the Putnam Hospital Center
Emergency Room on December 10, 2007, and found to have an
elevated intraocular pressure (“IOP”) of 23 in
his right eye. (Id. at ¶¶
5-6). It was recommended that Plaintiff follow
up with an ophthalmologist, and an ophthalmological
consultation was requested by Plaintiff's primary medical
care provider at the time, Green Haven Physician Assistant
Novoa (“PA Novoa”). (Id. at ¶ 9).
On December 19, 2007, Plaintiff was examined by an
ophthalmological specialist and found to have a normal IOP of
19 in both eyes and normal visual acuity. (Id. at
months later, on February 25, 2008, Plaintiff was again seen
by a specialist upon the referral of PA Novoa. (Def. 56.1
¶ 13). Plaintiff had been evaluated at Green Haven after
complaining of blurry vision, and was found to have 20/70
vision in his right eye and 20/40 in his left eye.
(Id.). However, the specialist found that Plaintiff
had normal visual acuity in both eyes. (Id. at
¶ 14). Plaintiff's IOP was 21 in his right eye and
22 in his left. (Id. at ¶ 15). Accordingly, the
specialist recommended a visual field test. (Id. at
¶ 16). “Following a referral by Green Haven
Physician Assistant Rodas, an Octopus Visual Field Test was
performed on March 19, 2008, which showed normal results in
both eyes.” (Id. at ¶ 18).
within the subsequent year, Defendant was assigned to serve
as Plaintiff's primary medical care provider. (Def. 56.1
¶ 19). When Plaintiff complained of blurry vision,
Defendant referred Plaintiff to a specialist on April 9,
2009. (Def. 56.1 ¶ 19 (citing Rheeman Decl. ¶ 14,
Ex. F); Bhopale Decl. ¶ 14). “Plaintiff was seen
by the specialist on May 11, 2009, and his IOP was found to
be slightly elevated at 22 in the right eye and 24 in the
left eye, and his vision was measured as normal, 20/25, in
both eyes.” (Id. at ¶ 20). “[T]he
specialist recommended another visual field test.”
(Id. at ¶ 21). Defendant issued an additional
referral, and an additional Octopus Visual Field Test was
performed on June 4, 2009[.]” (Id. at ¶
23). The test results were normal as to both of
Plaintiff's eyes. (Id.). Accordingly,
“[n]o course of treatment or follow-up testing was
recommended by the specialist who conducted the June 4, 2009
visual field test.” (Id. at ¶
next consultation with a specialist took place on January 19,
2010, upon an additional referral from Defendant. (Def. 56.1
¶ 26). The specialist found that Plaintiff's IOP was
25 in his right eye and 24 in his left. (Id.).
Plaintiff's visual acuity was normal, measuring at 20/25
in both eyes. (Id. at ¶ 28). “The
specialist recommended another visual field test, which,
after a referral by [Defendant], was performed on February
12, 2010.” (Id. at ¶ 29). “The
Octopus Visual Field Test showed claimed nonspecific
scattered scotoma (small isolated areas of claimed vision
loss) in [the] superior visual field in the right eye and a
claimed superior arcuate (top of the eye) visual field defect
in the left eye.” (Rheeman Decl. ¶ 20 (citing
id. at Ex. I)).
Defendant referred Plaintiff for a follow-up appointment with
a specialist, which appointment occurred on February 22,
2010. (Def. 56.1 ¶ 30). Plaintiff's IOP was measured
to be 23 in his right eye and 22 in his left. (Id.
at ¶ 31). Plaintiff had normal visual acuity of 20/25 in
both eyes. (Id. at ¶ 32). Following this
appointment, Plaintiff was prescribed Lumigan eye
dropsto treat his elevated IOP and referred to a
glaucoma specialist. (Id. at ¶ 33). Additionally,
upon Defendant's referral, “an MRI of
Plaintiff's brain was taken” on February 23, 2010,
“which showed normal results.” (Id. at
March 19, 2010, Plaintiff was examined by glaucoma specialist
Dr. Wandel, again upon a referral from Defendant. (Def. 56.1
¶ 37). Plaintiff's IOP was 15 in his right eye and
20 in his left. (Id. at ¶ 38). His vision was
normal, 20/20 and 20/30 in each of Plaintiff's eyes.
(Id. at ¶ 39).
a referral by [Defendant], Dr. Wandel ordered a Humphrey
Visual Field Test and a Heidelberg Retina Tomograph
(‘HRT'), which was conducted on May 4, 2010, and
was normal except [for] a subtle superior eyelid defect in
both eyes, a condition that is not a symptom of
glaucoma.” (Def. 56.1 ¶ 40). A “superior
visual field defect in both eyes” detected on February
22, 2010, “appeared to have resolved.”
(Id. at ¶ 41). “Plaintiff also had OCT
(Optical Coherence Tomography) of NFL (Nerve Fiber Layer)
..., which showed normal results.” (Id. at
¶ 42 (citing Rheeman Decl. ¶ 27, Ex. M; Wandel
Decl. ¶ 7)).
referrals by [Defendant], Plaintiff was seen again by Dr.
Wandel on November 12, 2010, and February 25, 2011.”
(Def. 56.1 ¶ 45). “Plaintiff was found to have
normal IOP on November 12, 2010, and February 25, 2011, while
being treated with Lumigan.” (Id. at ¶
46). “Plaintiff's vision was normal, measur[ing] at
20/25 in both eyes on November 12, 2010, and February 25,
2011.” (Def. 56.1 ¶ 47). Moreover,
“Plaintiff's optic nerves continued to be normal in
appearance without cupping, which indicated that Plaintiff
was not suffering from glaucoma.” (Id. at
¶ 48 (citing Rheeman Decl. ¶ 28, Ex. N; Wandel
Decl. ¶¶ 6-7)).
Plaintiff's Medical History After His Transfer from Green
2011, Plaintiff was transferred from Green Haven to
Southport, and Defendant's responsibilities for
Plaintiff's medical care ceased. (Def. 56.1 ¶¶
49-50). However, Plaintiff continued to receive care from
7, 2011, pursuant to a referral from Plaintiff's
“medical providers at Southport, Plaintiff was seen by
a new ophthalmological specialist.” (Def. 56.1 ¶
49). Plaintiff's IOP was 17 in his right eye and 21 in
the left. (Id. at ¶ 51). On July 6, 2011,
pursuant to an additional referral, “Plaintiff was seen
by an optometrist ... and Plaintiff's vision was
corrected, by glasses, to 20/20 in both eyes, with mild
correction for myopia/near sightedness.” (Id.
at ¶ 52).
was next seen by a specialist on June 25, 2012, at which time
his IOP was normal, measuring at 12 in his right eye and 14
in his left. (Def. 56.1 ¶¶ 53-54). Plaintiff was
seen by a specialist again on September 25, 2012, and his IOP
was still normal, measuring at 18 in his right eye and 14 in
his left. (Id. at ¶ 55).
3, 2013, an optometrist found that Plaintiff's visual
acuity was 20/50 in both eyes. (Def. 56.1 ¶ 57).
Plaintiff was given glasses, which improved his vision to
was next seen by a specialist on May 8, 2015. (Def. 56.1
¶ 59). At that time, Plaintiff's optic nerves were
examined and found to still be “normal in appearance
with an estimated cup of 0.2 in both eyes.”
was seen by a glaucoma specialist on January 27, 2016, and
his IOP was normal, measuring 17 in both eyes. (Def. 56.1
¶¶ 60-61). An additional Humphrey Visual Field Test
was conducted, which test “showed high false negatives
(35% in the right and 21% in the left eye) and showed dense
superior and temporal visual field defect in both eyes. An
OCT of NFL came back normal in the right eye and significant
nerve fiber layer thinning in the left eye.”
(Id. at ¶ 62). This abnormality was the result
of “the scan being off centered and was thus not
accurate.” (Id. at ¶ 63). However, in
light of the “dense superior and bitemporal visual
field defect seen, which is very atypical of glaucoma, the
glaucoma specialist recommended referring Plaintiff to a
neuroophthalmologist.” (Id. at ¶ 63).
Plaintiff was referred to and seen by Dr. Charles Rheeman on
February 24, 2016. (Def. 56.1 ¶ 64; see also
Rheeman Decl. ¶ 42, Ex. BB). Without his glasses,
Plaintiff's visual acuity was 20/50 in his right eye and
20/80 in his left. (Id. at ¶ 65).
“Plaintiff's pupillary exam was normal without
afferent pupillary defect[, ] and ... Plaintiff's IOP was
normal at 19 in the right and 18 in the left eye.”
(Id. at ¶¶ 66-67). “An OCT of NFL
came back normal in both eyes.” (Id. at ¶
70). “[An] HVF test showed moderate to severely
constricted visual field defect in both eyes, which was
different than [the] complete superior and temporal visual
field defect in both eyes seen on January 27, 2016.”
(Id. at ¶ 69). But overall,
“Plaintiff's entire eye exam was normal, including
normal appearing optic nerves with normal cup of 0.2 in both
eyes.” (Id. at ¶ 68 (citing Rheeman Decl.
¶ 42, Ex. BB)). Indeed, “Plaintiff's cup/disc
ratio of his optic nerve was 0.2 on February 24, 2016, which
was the same as it was when measured in 2008.”
(Id. at ¶ 74 (citing Rheeman Decl. ¶ 45)).
B. Procedural Background 
operative pleading in this action, Plaintiff's Amended
Complaint, was filed on May 17, 2012. (Dkt. #12). The
then-Defendants moved to dismiss the Amended Complaint on May
20, 2015. (Dkt. #44-46).
September 1, 2015, Judge Analisa Torres issued the September
1 Memorandum and Order (the “September 1
Memorandum”) dismissing Plaintiff's claims against
all Defendants but for Defendant Bhopale. Fortunato v.
Bernstein, No. 12 Civ. 1630 (AT), 2015 WL 5813376
(S.D.N.Y. Sept. 1, 2015). (Dkt. #50). On September 10, 2015,
Defendant Bhopale and former-Defendant Bernstein filed a
motion for reconsideration of certain arguments they had made
under Federal Rule of Civil Procedure 12(b)(2). (Dkt.
#51-52). After resolving various service-related issues (Dkt.
#55-62), the Court granted the reconsideration motion on
February 22, 2016. (Dkt. #63). “However, upon
reconsideration, the Court adhere[d] to its prior decision,
” pursuant to its discretion under Federal Rule of
Civil Procedure 4(m). (Id.). Defendant Bhopale, the
only remaining Defendant, filed his Answer to the Amended
Complaint on April 14, 2016, in which he raised several
affirmative defenses, including the defense of qualified
immunity. (Dkt. #68).
October 6, 2016, at Defendant's request (Dkt. #76), Judge
Torres set a schedule for the briefing of Defendant's
contemplated motion for summary judgment. (Dkt. #77). After
the schedule was extended on November 9, 2016 (Dkt. #79),
Defendant filed his motion on November 22, 2016 (Dkt.
#80-88). Plaintiff filed a letter in opposition to
Defendant's motion dated November 27, 2016 (Dkt. #89),
and Defendant filed his reply in further support of his
motion on January 11, 2017 (Dkt. #90). Plaintiff filed a
second letter ...