Morales-Rojas v. Ruiz

          RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          MICHAEL P. SHEA, UNITED STATES DISTRICT JUDGE

         The plaintiff, Agustin Morales-Rojas, is currently incarcerated at Cheshire Correctional Institution, in Cheshire, Connecticut. He initiated this action by filing a complaint pro se pursuant to 42 U.S.C. § 1983 against Drs. Ricardo Ruiz and Samuel Berkowitz.

         On January 12, 2018, after reviewing the complaint, I concluded that the plaintiff had stated plausible claims of deliberate indifference to his alleged need for orthopedic shoes or inserts or other treatment to alleviate pain and discomfort in his left foot against Drs. Ruiz and Berkowitz and a plausible claim of deliberate indifference to his ankle injury against Dr. Ruiz. See Initial Review Order, ECF No. 7. I allowed those Eighth Amendment claims to proceed against Drs. Ruiz and Berkowitz in their individual and official capacities.

         On March 8, 2018, the defendants filed an answer to the complaint. On August 10, 2018, the defendants moved for summary judgment. On January 16, 2019, the plaintiff filed his opposition to the motion. For the reasons set forth below, the motion for summary judgment will be granted.

         I. Standard of Review

         The party moving for summary judgment bears the burden of demonstrating “that there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law, ” and a dispute is “genuine” if “a reasonable jury could return a verdict for the nonmoving party” based on it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         If a motion for summary judgment is supported by documentary evidence and sworn affidavits and “demonstrates the absence of a genuine issue of material fact, ” the nonmoving party must do more than assert the existence of some unspecified disputed material facts or “rely on conclusory allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (citation omitted). The party opposing the motion for summary judgment “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Id.

         In reviewing the record, the court must “construe the evidence in the light most favorable to the non-moving party and . . . draw all reasonable inferences in its favor.” Gary Friedrich Enters., L.L.C. v. Marvel Characters, Inc., 716 F.3d 302, 312 (2d Cir. 2013) (citation omitted). The court may not “make credibility determinations or weigh the evidence. . . . [because] [c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Proctor v. LeClaire, 846 F.3d 597, 608 (2d Cir. 2017) (internal quotation marks and citations omitted).

         Where one party is proceeding pro se, the court reads the pro se party's papers liberally and interprets them “to raise the strongest arguments that they suggest.” Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015) (internal quotation marks and citation omitted). Despite this liberal interpretation, however, allegations unsupported by admissible evidence “do not create a material issue of fact” and cannot overcome a properly supported motion for summary judgment. Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).

         II. Facts^[1]

         The plaintiff's medical records reflect that he has been confined in a State of Connecticut Department of Correction facility since at least July 2008. Defs.' L.R. 56(a)1, Ex. B (Medical Records), ECF No. 18 at 40.^[2] Prior to his incarceration, the plaintiff was the victim of gunshot wounds to his left foot and knee and the left side of his back and neck. Defs.' L.R. 56(a)1 ¶ 2; Compl., ECF No. 1 at 2-3 ¶ 8. The injuries sustained by the plaintiff required the amputation of the fourth and fifth toes on his left foot. Defs.' L.R. 56(a)1 ¶ 3.

         On December 17, 2008, Dr. Berkowitz examined the plaintiff's left foot due to his complaints of painful corns. Id. ¶ 4. Dr. Berkowitz diagnosed the plaintiff's corn as having been caused by a hammer toe deformity in the third toe of his left foot. Id. ¶ 5. A hammer toe deformity is the abnormal bending of the middle joint of the toe. Pl.'s L.R. 56(a)2 ¶ 4.

         It was Dr. Berkowitz's opinion that orthopedic shoes could alleviate the pain caused by the corn on the plaintiff's third toe. Defs.' L.R. 56(a)1 ¶ 6. On December 18, 2008, Dr. Berkowitz submitted a request to the Utilization Review Committee (“URC”) to approve orthopedic shoes for the plaintiff. Id. ¶ 7. On January 14, 2009, Dr. Berkowitz informed the plaintiff that the URC had approved the request for orthopedic shoes. Id. ¶ 8. After asking the plaintiff his shoe size and being told he was a size 10, Dr. Berkowitz ordered a size ten orthopedic shoe for the plaintiff. Ex. C (Affidavit of Samuel Berkowitz), ECF No. 16-3 ¶¶ 12-14. On April 22, 2009, the plaintiff informed Dr. Berkowitz that he was still experiencing pain due to corns and had not received the orthopedic shoes. Ex. C ¶ 15. On May 11, 2009, a medical staff member delivered the orthopedic shoes to the plaintiff. Id. ¶ 16.

         On August 26, 2009, Dr. Berkowitz met with the plaintiff and the plaintiff explained that he had thrown out the orthopedic shoes because they had broken. Id. ¶ 17. Dr. Berkowitz noted that the plaintiff still suffered from a painful corn due to the hammer toe deformity. Id. Later that day, Dr. Berkowitz submitted a request to the URC to perform a procedure to correct the hammer toe deformity. Defs.' L.R. 56(a)1 ¶ 11.

         On September 1, 2009, the URC approved the request. Ex. B (Medical Records), ECF No. 18 at 110. On February 24, 2010, Dr. Berkowitz performed surgery to correct the plaintiff's hammer toe deformity of the third toe of his left foot. Defs.' L.R. 56(a)1 ¶ 12; Ex. B at 111-14.

         On June 8, 2012, prison officials transferred the plaintiff from Cheshire to Corrigan Correctional Institution. Ex. A (Medical Records), ECF No. 17 at 87. On July 9, 2012, Dr. Fedus, a podiatrist, evaluated the plaintiff due to his complaints of callouses on his right foot and on his left foot. Defs.' L.R. 56(a)1 ¶ 13; Ex. A at 101. Dr. Fedus noted that the plaintiff's gait was normal, there was no abnormal wear on the plaintiff's sneakers, he had no fourth or fifth toes on his left foot due to amputation, and he had callouses on the bottoms of some of the toes on both feet. Ex. A at 101. He treated the callouses by manual debridement. Id. Based on his examination, Dr. Fedus did not see a medical need for special sneakers, noting that quality and comfort were not a medical need. Id.

         At some point between May 19, 2016 and June 2, 2016, prison officials at Corrigan transferred the plaintiff back to Cheshire. Id. at 48-53. On July 1, 2016, Dr. Ruiz evaluated the plaintiff due to his complaints of lumbar back pain and callouses on his feet. Defs.' L.R. 56(a)1 ¶¶ 16-18. Dr. Ruiz ordered an x-ray of the plaintiff's back, prescribed a medication to alleviate the plaintiff's pain, issued him a bottom bunk pass for a year, and recommended that he tie his shoes correctly and refrain from engaging in sports. Id. ¶¶ 18, 20; Ex. D ¶¶ 7-10; Ex. A at 8, 47.

         On September 1, 2016, Dr. Ruiz examined the plaintiff due to his complaints of back pain and a potential allergy to fish. Defs.' L.R. 56(a)1 ¶ 23; Ex. A at 43. Dr. Ruiz noted the x-ray of the plaintiff's lumbar spine was normal, the plaintiff could sit and stand, and his gait was normal. Ex. D ¶ 14; Ex. A at 43, 93. He advised the plaintiff to avoid fish and directed him to contact his unit manager regarding his request for a new mattress. Ex. A at 43. Dr. Ruiz noted no complaints of foot pain. Defs.' L.R. 56(a)1 ¶ 24.

         On November 3, 2016, Dr. Ruiz examined the plaintiff due to his complaints that his shoes did not fit him properly and his request that he be tested for lead poisoning. Id. ¶ 26; Ex. A at 38; Ex. D ¶ 16. Dr. Ruiz observed abrasions on the tops of the plaintiff's second and third toes on his left foot. Ex. A at 38; Ex. D ¶ 16. Later that day, Dr. Ruiz submitted a request to the URC for a podiatry consultation due to the abrasions on the tops of the plaintiff's toes on his left foot. Defs.' L.R. 56(a)1 ¶ 27. On November 10, 2016, the URC approved the request. Id. ¶ 28

         On December 5, 2016, Dr. Berkowitz examined the plaintiff and noted abrasions on both of his feet Id. ¶¶ 28-29. When Dr. Berkowitz suggested that the plaintiff's shoes were too small, the plaintiff advised Dr. Berkowitz that he had always worn a size ten shoe. Ex. A at 103; Pl.'s L.R. 56(a)2 ¶ 30. Dr. Berkowitz measured the plaintiff's feet using a shoe sizer and concluded that the plaintiff's feet were a size twelve. Defs.' L.R. 56(a)1 ¶ 30; Ex. A at 103. Dr. Berkowitz opined that the plaintiff was wearing shoes that were too small for his feet and that if he wore shoes that were the appropriate size, he would not experience any injuries to his toes. Defs.' L.R. 56(a)1 ¶ 33; Ex. A at 103. Dr. Berkowitz did not prescribe orthotic shoes for the plaintiff's feet. Defs.' L.R. 56(a)1 ¶ 31; Ex. A at 103.

         On June 22, 2017, the plaintiff injured his left ankle while attempting to catch a basketball in the recreation yard. Pl.'s L.R. 56(a)2 ¶ 35. The nurse who treated the plaintiff after he was brought to the medical unit noted that the plaintiff had complained that he had twisted his left foot playing basketball; the nurse also noted that his left foot was painful and swollen, he was limping, and he was missing the fourth and fifth toes on his left foot. Ex. A at 30-31. The nurse provided the plaintiff with ice, motrin, an ace wrap, and crutches, advised him to elevate his foot and to stop playing basketball because it was a risky sport, and notified Dr. Ruiz. Id. at 29-31. A short time later, Dr. Ruiz examined the plaintiff and observed that there was ...