United States District Court, D. Connecticut
RULING ON DEFENDANTS' MOTION FOR SUMMARY
MICHAEL P. SHEA, UNITED STATES DISTRICT JUDGE
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.
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
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.
Standard of Review
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
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.
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).
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).
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. 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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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