Buffaloe v. Fein

RUSSELL BUFFALOE, Plaintiff, v. DR. FEIN and DR. BERNSTEIN, Defendants.

12 Civ. 9469 (GBD) (AJP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

October 24, 2013

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge:

To the Honorable George B. Daniels, United States District Judge:

Pro se plaintiff Russell Buffaloe brought this action pursuant to 42 U.S.C. § 1983, alleging that his primary care physician at Green Haven Correctional Facility, the late Dr. Fein,¹ and the facility medical director, Dr. Bernstein, were deliberately indifferent to his medical conditions. (Dkt. No. 2: Compl.; Dkt. No. 15: Am. Compl.) The Court previously denied defendants' motion to dismiss, while noting that defendants might prevail on summary judgment. Buffaloe v. Fein, 12 Civ. 9469, 2013 WL 3471060 (S.D.N.Y. July 11, 2013) (Peck, M.J.). Having completed discovery, Dr. Bernstein has now made that summary judgment motion. (Dkt. No. 39: Notice of Motion.) Forthe reasons set forth below, Dr. Bernstein's summary judgment motion should be GRANTED, the claims against the late Dr. Fein should be dismissed, and the case should be closed.

FACTS²

Buffaloe was transferred from Fishkill Correctional Facility to Green Haven Correctional Facility on September 10, 2010. (Dkt. No. 42: Bernstein Rule 56.1 Stmt. ¶ 9; Dkt. No. 41: Schulze Aff. Ex. A: Buffaloe Medical Records at 572.) Buffaloe was housed at Green Haven until he was involuntarily committed to Central New York Psychiatric Center ("CNYPC") on or about May 23, 2011. (Bernstein Rule 56.1 Stmt. ¶ 41; Schulze Aff. Ex. C: Bernstein Aff. ¶ 17.)

Prior to entering Green Haven, Buffaloe had been diagnosed with atrial fibrillation, congestive heart failure, a myocardial infarction, a pulmonary embolism, and spinal stenosis. (Bernstein Rule 56.1 Stmt. ¶¶ 5-8; Buffaloe Medical Records at 166, 171, 275.) While housed at other facilities, Buffaloe had been prescribed numerous medications and treatments, including physical therapy, to manage his heart conditions, back pain, and other health issues. (See, e.g., Buffaloe Medical Records at 584, 678, 711-25, 810, 825-26, 860-61, 878, 881, 935, 939.) His medical records indicate that Buffaloe routinely refused medication, physical therapy, andexamination throughout his incarceration at Green Haven and elsewhere. (See, e.g., id. at 4-6, 39-47, 501, 504-07, 513-16, 575, 578, 615, 820, 822-24, 939.)

The late Dr. Fein was Buffaloe's treating physician at Green Haven. (Bernstein Rule 56.1 Stmt. ¶ 2.) Dr. Bernstein was the Facility Health Services Director and reviewed Buffaloe's records but never treated or examined him. (Id. ¶¶ 3-4; Bernstein Aff. ¶¶ 2-3.) Specifically: (1) Drs. Fein and Bernstein had a discussion in December 2010 regarding whether to send Buffaloe to an outside cardiologist (Bernstein Rule 56.1 Stmt. ¶ 21; Bernstein Aff. ¶ 5); (2) Dr. Bernstein reviewed Buffaloe's medical records in response to Buffaloe's petitions in January and March 2011 (Bernstein Rule 56.1 Stmt. ¶¶ 23-32; Bernstein Aff. ¶¶ 6-14); (3) medical personnel brought an incident to Dr. Bernstein's attention in April 2011 (Bernstein Rule 56.1 Stmt. ¶ 35; Bernstein Aff. ¶ 15); and (4) Drs. Fein and Bernstein conferred in May 2011 about Buffaloe's nutritional status (Bernstein Aff. ¶ 16; Bernstein Rule 56.1 Stmt. ¶ 39). Dr. Bernstein did not have any other involvement in Buffaloe's medical case. (Bernstein Aff. ¶ 17; Bernstein Rule 56.1 Stmt. ¶ 40.)

ANALYSIS

I. SUMMARY JUDGMENT STANDARD

Rule 56 of the Federal Rules of Civil Procedure provides that the "court shall grant summary judgment if 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); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Connolly v. Calvanese, 515 F. App'x 62, 62 (2d Cir. 2013); Lang v. Ret. Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S. Ct. at 2552-53.

To defeat a summary judgment motion, the non-moving party "'must do more than simply show that there is some metaphysical doubt as to the material facts.'" Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986)). Instead, the non-moving party must "cit[e] to particular parts of materials in the record" to show that "a fact . . . is generally disputed." Fed. R. Civ. P. 56(c); see, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S. Ct. at 1356; Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (At summary judgment, "[t]he time has come . . . 'to put up or shut up.'" (citations omitted)), cert. denied, 540 U.S. 811, 124 S. Ct. 53 (2003).

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S. Ct. at 2513.³ The Court draws all inferences in favor of the non-moving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S. Ct. 489 (1987). "If, as tothe issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570(1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S. Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S. Ct. at 2510 (citations omitted); see also, e.g., Knight v. U.S. Fire Ins. Co., 804 F.2d at 11-12.

"The Court recognizes that it must extend extra consideration to pro se plaintiffs" and that "pro se parties are to be given special latitude on summary judgment motions." Salahuddin v. Coughlin, 999 F. Supp. 526, 535 (S.D.N.Y. 1998) (Peck, M.J.) (citations & quotations omitted); see, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted "'to raise the strongest arguments that they suggest'").⁴ "Nevertheless,proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases).⁵

II. DEFENDANT'S SUMMARY JUDGMENT MOTION SHOULD BE GRANTED

Buffaloe alleges that Dr. Bernstein was deliberately indifferent to his medical needs based on Dr. Bernstein's failure to overrule treating physician Dr. Fein's determinations. Dr. Bernstein argues that summary judgment should be granted because Buffaloe's medical records provided sufficient bases on which to have affirmed the treating physician's decisions. (Dkt. No. 40: Bernstein Br. at 1-2.)

A. Legal Standards

1. Standards Governing § 1983 Eighth Amendment Deliberate Indifference to Serious Medical Needs Claims

To prevail in a § 1983 action, a plaintiff must demonstrate that he has been denied a constitutional or federal statutory right and that the deprivation occurred under color of state law. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254-55 (1988). "Section 1983 itself," however, "creates no substantive rights; it provides only a procedure for redress for thedeprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted), cert. denied, 512 U.S. 1240, 114 S. Ct. 2749 (1994).

As this Court stated in ruling on defendants' prior motion to dismiss, in order to prevail, Buffaloe must show that Dr. Bernstein was deliberately indifferent to Buffaloe's serious medical needs. Buffaloe v. Fein, 12 Civ. 9469, 2013 WL 3471060 at *1 (S.D.N.Y. July 11, 2013) (Peck, M.J.) (& cases cited therein).

As the Second Circuit has explained, "the deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).⁶ "Objectively, the alleged deprivation must be 'sufficiently serious' . . . ." Hathaway v. Coughlin, 99 F.3d at 553; Smith v. Carpenter, 316 F.3d at 183-84 ("The objective 'medical need' element measures the severity of the alleged deprivation . . . .").⁷ "'The Constitution does not command that...