Opinion
6:16-CV-06370 EAW, 6:16-CV-06649 EAW
2021-03-09
Nyjee L. BOYD, Plaintiff, v. Dr. DEASIS, Ebony Johnson, John Does 1-3, John Sanna, and Kevin Newton, Defendants. Nyjee L. Boyd, Plaintiff, v. Corporal Gentile, Deputy Peter MoFardin, and Joyce Pray, Defendants.
Nyjee L. Boyd, Stormville, NY, pro se. David Michael Fulvio, Anthony J. Villani, P.C., Lyons, NY, Paul A. Sanders, Barclay Damon, LLP, Rochester, NY, for Defendants Dr. Deasis, Ebony Johnson. Adam M. Clark, Monroe County Department of Law, Rochester, NY, for Defendants John Does 1-3, John Sanna, Kevin Newton.
Nyjee L. Boyd, Stormville, NY, pro se.
David Michael Fulvio, Anthony J. Villani, P.C., Lyons, NY, Paul A. Sanders, Barclay Damon, LLP, Rochester, NY, for Defendants Dr. Deasis, Ebony Johnson.
Adam M. Clark, Monroe County Department of Law, Rochester, NY, for Defendants John Does 1-3, John Sanna, Kevin Newton.
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Proceeding pro se , Plaintiff, a former pre-trial detainee at the Monroe County Jail, commenced the above-captioned actions against Defendants pursuant to 42 U.S.C. § 1983, alleging that they were deliberately indifferent to his medical needs in violation of the Fourteenth Amendment. Plaintiff commenced the first action on June 2, 2016 (Civil Action No. 16-CV-06370 (the "Deasis Action")), against defendants Dr. Anselmo Deasis, Nurse Ebony Johnson, Superintendent Harlieng, and John Does 1-3, and a subsequent action on September 27, 2016 (Civil Action No. 16-CV-06649 (the "Pray Action")), against defendants Corporal Gentile, Deputy Peter MoFardin, and Nurse Joyce Pray. Both cases stem from a left knee injury Plaintiff alleges he sustained on December 29, 2014, while he was playing basketball at the Monroe County Jail and the subsequent treatment he received for that injury. (Deasis Action, Dkt. 105-1; Pray Action, Dkt. 1).
Plaintiff's complaints cite to the Eighth Amendment as a basis for his claims. However, Plaintiff was a pre-trial detainee at the time of the events alleged in his complaints, and therefore his claims that Defendants were deliberately indifferent to his medical needs state a violation of the Fourteenth Amendment. See Hamilton v. Westchester Dep't of Corrs. , No. 19-CV-3838(KMK), 2020 WL 4271709, at *5 (S.D.N.Y. July 23, 2020).
Plaintiff's claims against Corporal Gentile and Deputy MoFardin stem from an incident on February 6, 2015, when Plaintiff attempted to use the gym but was instructed to return to his block due to a medical restriction for his knee injury. Plaintiff contends that he was attacked by Deputy MoFardin and Corporal Gentile after he left the gym, which further injured his knee. (See Pray Action, Dkt. 1 at 6). Defendants MoFardin and Gentile have not moved for summary judgment, and the deadline to do so has expired. (See Pray Action, Dkt. 103).
Presently before the Court are three motions for summary judgment: (1) a motion for summary judgment filed by Dr. Deasis and Nurse Johnson (Deasis Action, Dkt. 133); (2) a motion for summary judgment filed by deputies Newton, Sanna, and John Doe (the "Deputy Defendants") (Deasis Action, Dkt. 141); and (3) a motion for summary judgment filed by Nurse Pray (Pray Action, Dkt. 96). For the following reasons, the Court grants each of the motions.
BACKGROUND
The following facts are taken from Defendants’ Statements of Undisputed Facts (Deasis Action, Dkt. 133-2 & Dkt. 141-4; Pray Action; Dkt. 96-2), and the exhibits submitted in support of their motions, including Plaintiff's Examination Before Trial (Deasis Action, Dkt. 133-4; Pray Action, Dkt. 96-4 ("Plaintiff's EBT")) and the relevant portions of his medical records from the Monroe County Jail (Deasis Action, Dkt. 133-7; Pray Action, Dkt. 96-7 (the "MCJ Records")) and the University of Rochester Strong Memorial Hospital (Deasis Action, 133-8; Pray Action, Dkt. 96-8 (the "Strong Records")). Despite being afforded several extensions of time to file a response to Defendants’ motions, Plaintiff failed to submit an Opposing Statement of Material Facts, and therefore the factual statements contained in Defendants’ statements are "deemed admitted for purposes of the motion" because they are supported by admissible evidence in the record. See L. R. Civ. P. 56(a)(2); see also N.Y. State Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc. , 426 F.3d 640, 648-49 (2d Cir. 2005) ("district courts have the authority to institute local rules governing summary judgment submissions" although "[r]eliance on a party's statement of undisputed facts may not be warranted where those facts are unsupported by the record").
I. Facts Pertaining to Dr. Deasis, Nurse Johnson, and Nurse Pray
The Statements of Undisputed Facts submitted by Dr. Deasis and Nurse Johnson in the Deasis Action and by Nurse Pray in the Pray Action are identical.
Plaintiff was incarcerated as a pre-trial detainee at the Monroe County Jail ("MCJ") between April 27, 2014 and July 7, 2015. (Deasis Action, Dkt. 133-2 at ¶ 1; Pray Action, Dkt. 96-2 at ¶ 1; Plaintiff's EBT at 100). On December 29, 2014, Plaintiff was playing basketball with other inmates when he went up for a rebound and injured his left leg. (Deasis Action, Dkt. 133-2 at ¶ 2; Pray Action at ¶ 2; Plaintiff's EBT at 10-11). Following the incident, Nurse Johnson examined Plaintiff's knee. (Deasis Action, Dkt. 133-2 at ¶ 3; Pray Action, Dkt. 96-2 at ¶ 3; Plaintiff's EBT at 103). Plaintiff informed Nurse Johnson that he believed he needed to go to the hospital. (Plaintiff's EBT at 22). Although Plaintiff complained of discomfort, his leg had full range of motion, and he was instructed to rest his left leg and proceeded to ambulate out of Nurse Johnson's office. (Deasis Action, Dkt. 133-2 at ¶ 3; Pray Action, Dkt. 96-2 at ¶ 3; Plaintiff's EBT at 103-05). Although Nurse Johnson told Plaintiff to obtain ice from the deputies located near his cell, Plaintiff did not receive ice from the deputies. (Deasis Action, Dkt. 133-2 at ¶ 4; Pray Action, Dkt. 96-2 at ¶ 4; Plaintiff's EBT at 105). Plaintiff did not inform Nurse Johnson that he did not receive ice, and to his knowledge, Nurse Johnson was not made aware that he did not receive ice. (Id. ). After he returned to his cell, Plaintiff placed a sick-call request. (Plaintiff's EBT at 106). Plaintiff received a response to his request that he would be seen by a doctor. (Id. ). On January 5, 2015, Plaintiff was examined by Dr. Deasis. (Deasis Action, Dkt. 133-2 at ¶ 5; Pray Action, Dkt. 96-2 at ¶ 5; Plaintiff's EBT at 106-07; MCJ Records at 13). Dr. Deasis examined Plaintiff's left knee and found that it was slightly swollen, but had range of motion, without valgus or varus deformity, crepitus, or calf tenderness, indicating Plaintiff's knee remained stable, and aggressive treatment was unwarranted. (Deasis Action, Dkt. 133-2 at ¶ 5; Pray Action, Dkt. 96-2 at ¶ 5; Plaintiff's EBT at 107-08). Dr. Deasis diagnosed Plaintiff with a left knee sprain, provided him with an elastic knee support, and advised him to rest. (Id. ). Dr. Deasis also ordered x-rays to confirm his findings. (Id. ). Because he was experiencing pain, Plaintiff was initially prescribed Tylenol ; however, when Plaintiff advised medical staff that Tylenol was not sufficient, he was prescribed other medications to address his pain, including Tramadol. (Plaintiff's EBT at 109-12)
Thereafter, on January 9, 2015, Nurse Pray examined Plaintiff and found that he was favoring his right leg, but there was no obvious swelling or deformity in his left knee. (Deasis Action, Dkt. 133-2 at ¶ 6; Pray Action, Dkt. 96-2 at ¶ 6; Plaintiff's EBT at 112-13; MCJ Records at 13). Plaintiff informed Nurse Pray that he had difficulty walking normally (Plaintiff's EBT at 113), and Nurse Pray advised Plaintiff to continue to take pain medication and only participate in activity as tolerated. (Deasis Action, Dkt. 133-2 at ¶ 6; Pray Action, Dkt. 96-2 at ¶ 6; Plaintiff's EBT at 112-13). On January 13, 2015, Dr. Deasis again examined Plaintiff and found that his left knee was tender and slightly swollen, but had no crepitus, valgus or varus deformity. (Deasis Action, Dkt. 133-2 at ¶ 7; Pray Action, Dkt. 96-2 at ¶ 7; Plaintiff's EBT at 113-14). Dr. Deasis ordered a mobile x-ray and prescribed non-steroidal anti-inflammatory medication for Plaintiff to manage his pain. (Deasis Action, Dkt. 133-2 at ¶ 7; Pray Action, Dkt. 96-2 at ¶ 7). On January 15, 2015, Plaintiff underwent the mobile x-ray, which revealed no evidence of a fracture to his left knee. (Deasis Action, Dkt. 133-2 at ¶ 8; Pray Action; Dkt. 96-2 at ¶ 8; Plaintiff's EBT at 108).
On January 28, 2015, Dr. Deasis again examined Plaintiff and found that his left knee was slightly swollen, with limited ability to extend, but had no crepitus, no varus or valgus deformity or instability. (Deasis Action, Dkt. 133-2 at ¶ 9; Pray Action, Dkt. 96-2 at ¶ 9; Plaintiff's EBT at 118). Although Plaintiff's x-ray was normal, Dr. Deasis submitted an outpatient referral form, requesting that Plaintiff be examined by an outpatient orthopedic doctor, and possibly have an MRI. (Deasis Action, Dkt. 133-2 at ¶ 10; Pray Action, Dkt. 96-2 at ¶ 10; Plaintiff's EBT at 118-19). He further ordered that Plaintiff be restricted from utilizing the gym. (Id. ).
On February 6, 2015, Nurse Pray visited Plaintiff's cell after he was involved in a use-of-force incident and reported hearing a "pop" in his left knee. (Deasis Action, Dkt. 133-2 at ¶ 11; Pray Action, Dkt. 96-2 at ¶ 11; Plaintiff's EBT at 119-20). Plaintiff would not allow Nurse Pray to examine him, but she determined that there was no obvious swelling or deformity and told Plaintiff that Dr. Deasis would also examine him. (Deasis Action, Dkt. 133-2 at ¶ 11; Pray Action, Dkt. 96-2 at ¶ 11). Approximately 30 minutes later, Dr. Deasis visited Plaintiff in his cell. (Deasis Action, Dkt. 133-2 at ¶ 12; Pray Action, Dkt. 96-2 at ¶ 12; Plaintiff's EBT at 121). He found no calf tenderness, "slight bogginess on the medial side," and that Plaintiff was able to flex his knee to some extent ( Deasis Action, Dkt. 133-2 at ¶ 12; Pray Action, Dkt. 96-2 at ¶ 12), although Plaintiff testified that he was unable to flex his knee at all (Plaintiff's EBT at 121). Dr. Deasis advised Plaintiff to resume use of the elastic knee support and continue nonsteroidal anti-inflammatory medication. (Deasis Action, Dkt. 133-2 at ¶ 12; Pray Action, Dkt. 96-2 at ¶ 12; Plaintiff's EBT at 121-22).
On February 10, 2015, treatment providers at Strong Memorial Hospital ("Strong") took images of Plaintiff's knee, which revealed that he had a "tiny" Segond fracture and deepened latera femoral sulcus, which were indicative of an anterior cruciate ligament ("ACL") injury. (Deasis Action, Dkt. 133-2 at ¶ 13; Pray Action, Dkt. 96-2 at ¶ 13; see also Strong Records at 5-6). Plaintiff testified that he did not specifically recall this particular appointment at Strong. (Plaintiff's EBT at 125). Dr. Kelly recommended that Plaintiff continue using the knee sleeve provided by Dr. Deasis and only bear weight as tolerated. (Deasis Action, Dkt. 133-2 at ¶ 13; Pray Action, Dkt. 96-2 at ¶ 13; see also Strong Records at 7).
Dr. Deasis continued treating Plaintiff into February. (Plaintiff's EBT at 125). On February 13, 2015, Dr. Deasis submitted an outpatient referral request for Plaintiff to return to Strong for an MRI. (Deasis Action. Dkt. 133-2 at ¶ 14; Pray Action, Dkt. 96-2 at ¶ 14; Plaintiff's EBT at 125-26). Dr. Deasis again examined Plaintiff's knee on February 17, 2015, and found that he was "asymptomatic except for chronic left knee pain" and that his swelling was "markedly down." (Deasis Action, Dkt. 133-2 at ¶ 15; Pray Action, Dkt. 96-2 at ¶ 15). Dr. Deasis informed Plaintiff that he would have an MRI performed to determine whether there was a medial collateral ligament ("MCL") tear. (Id. ). On February 18, 2015, Plaintiff was scheduled for an MRI at Strong on March 11, 2015. (Id. at ¶ 16).
On March 11, 2015, Plaintiff underwent the MRI at Strong. (Deasis Action, Dkt. 133-2 at ¶ 17; Pray Action, Dkt. 96-2 at ¶ 17; Plaintiff's EBT at 127; Strong Records at 19-20). The MRI revealed that Plaintiff had a "stigma of pivot shift injury with torn ACL, kissing bone contusions, medial collateral ligament ("MCL") sprain, and bilateral meniscal tears." (Id. ). On March 18, 2015, Dr. Deasis submitted an outpatient referral request for Plaintiff to be examined by an orthopedic specialist. (Deasis Action, Dkt. 133-2 at ¶ 18; Pray Action, Dkt. 96-2 at ¶ 18). Dr. Deasis performed another exam on March 26, 2015, and found that Plaintiff's left knee was tender on ambulation, had decreased range of motion, but swelling was minimal. (Id. at ¶ 19). Dr. Deasis advised Plaintiff that he would be seen by an orthopedic doctor soon. (Id. ).
On March 31, 2015, Daren McCalla, M.D., a consulting physician from the Strong Orthopedic Resident Clinic, confirmed that Plaintiff had an ACL tear with complex medial and lateral meniscus tear, but determined there was no need for immediate surgical intervention and recommended that Plaintiff continue to limit gym activity and wear a brace or sleeve when active. (Deasis Action, Dkt. 133-2 at ¶ 20; Pray Action, Dkt. 96-2 at ¶ 20; see also Strong Records at 32 ("His swelling has decreased a great deal and he has near full ROM at the knee.... He has been wearing an elastic sleeve but still reports chronic pain and occasional episodes of the knee giving out. I discussed with him that this is not an urgency or even a necessity to have this addressed surgically but that we would have him follow up....")). Plaintiff testified that he recalled an appointment with the orthopedist around March 30, 2015, and that he indicated that surgery may be necessary in the future but was not required at that point in time, and no date was set for surgery. (Plaintiff's EBT at 128-29). Plaintiff further testified that the orthopedic specialist told him to continue wearing his knee brace and to limit gym activity. (Id. at 129). Plaintiff agreed that the specialist "recommended essentially the same treatment that Dr. Deasis had been recommending up to that point" (id. at 129-30), but that despite those recommendations, he was still in pain (id. at 130).
In the weeks that followed, Plaintiff continued to be periodically examined by medical staff at the jail. (Id. ). On April 9, 2015, Dr. Deasis again examined Plaintiff's knee after he complained of pain and requested stronger pain medication. (Deasis Action, Dkt. 133-2 at ¶ 21; Pray Action, Dkt. 96-2 at ¶ 21). Dr. Deasis found that Plaintiff's knee was not swollen. (Id. ). He again examined Plaintiff on April 30, 2015, and found that there was no swelling, synovitis, varus or valgus instability, but due to Plaintiff's complaints of pain, advised Plaintiff to continue taking Tylenol and Tramadol as prescribed. (Id. at ¶ 22; see also Plaintiff's EBT at 131-32 (Dr. Deasis addressed Plaintiff's complaints of pain by directing him to "mix Tylenol and Tramadol" and therefore "addressed [Plaintiff's] concern and provided [him] with more potent pain medication")).
On May 2, 2015, Plaintiff filed a grievance against Nurse Johnson and Dr. Deasis for their failure to refer him for knee surgery. (Deasis Action, Dkt. 133-2 at ¶ 23; Pray Action, Dkt. 96-2 at ¶ 23; Plaintiff's EBT at 132). Plaintiff could not recall the basis for his grievance, but agreed that it was based on "the denial of treatment and the ... inability for them to provide proper care for the pain that I was in ... [a]nd to provide me surgery." (Plaintiff's EBT at 132-33). Plaintiff's grievance was denied on the basis that his medical needs were being properly addressed. (Deasis Action, Dkt. 133-2 at ¶ 23; Pray Action, Dkt. 96-2 at ¶ 23; Plaintiff's EBT at 133).
On May 6, 2015, Dr. Deasis examined Plaintiff's left knee, and found limited swelling and improved range of motion. (Deasis Action, Dkt. 133-2 at ¶ 24; Pray Action, Dkt. 96-2 at ¶ 24). On June 24, 2015, Dr. Deasis requested a follow-up appointment for Plaintiff at the University of Rochester Medical Center. (Id. at ¶ 25; see also Strong Records at 32 (on June 23, 2015, noting that the "doctor from the jail" was calling for a follow-up)). Plaintiff recalled that he was scheduled for an appointment with an outside medical provider around that timeframe. (Plaintiff's EBT at 137).
On July 7, 2015, before his next appointment at Strong, Plaintiff was transferred to Elmira Correctional Facility ("Elmira"). (Deasis Action, Dkt. 133-2 at ¶ 26; Pray Action, Dkt. 96-2 at ¶ 26; Plaintiff's EBT at 100). After approximately two weeks at Elmira, Plaintiff was transferred to Auburn Correctional Facility ("Auburn"). (Deasis Action, Dkt. 133-2 at ¶ 27; Pray Action, Dkt. 96-2 at ¶ 27; Plaintiff's EBT at 100). Plaintiff was at Auburn for seven months, but he was not seen by or examined by a doctor at Auburn, nor was he provided with a knee brace or medication during his incarceration at Auburn. (Deasis Action, Dkt. 133-2 at ¶¶ 28, 29; Pray Action; Dkt. 96-2 at ¶¶ 28-29; Plaintiff's EBT at 138). Plaintiff testified that shortly after he was transferred to Auburn he complained several times per month of pain and an inability to walk, but he was never seen by a doctor and did not have restrictions on his gym activity. (Plaintiff's EBT at 138-39). In February 2016, Plaintiff was involved in a fight with another inmate at Auburn, which aggravated his knee pain. (Deasis Action, Dkt. 133-2 at ¶ 30; Pray Action, Dkt. 96-2 at ¶ 30; Plaintiff's EBT at 156-57).
In March 2016, Plaintiff was transferred to Attica Correctional Facility ("Attica"). (Deasis Action, Dkt. 133-2 at ¶ 31; Pray Action, Dkt. 96-2 at ¶ 31; Plaintiff's EBT at 100). In July 2016, Plaintiff was again examined by a doctor for the first time since he left MCJ in July 2015, who advised him to continue wearing his knee brace and to take Tylenol. (Deasis Action, Dkt. 133-2 at ¶ 32; Pray Action, Dkt. 96-2 at ¶ 32; Plaintiff's EBT at 139-40). Plaintiff testified that during his time at Attica, his knee condition worsened over time and "kept swelling." (Plaintiff's EBT at 141). Plaintiff developed pain and fluid in his knee. (Deasis Action, Dkt. 133-2 at ¶ 33; Pray Action, Dkt. 96-2 at ¶ 33; Plaintiff's EBT at 141). A doctor recommend that he undergo knee surgery, which was performed on February 2, 2017. (Deasis Action, Dkt. 133-2 at ¶ 34; Pray Action, Dkt. 96-2 at ¶ 43; Plaintiff's EBT at 141). Plaintiff testified that post-surgery, he still experiences knee stiffness and swelling. (Plaintiff's EBT at 145).
II. Facts Pertaining to the Deputy Defendants
Plaintiff testified that at the time of his knee injury, two inmates helped him up and assisted him over to the "deputy bubble" where two deputies, John Sanna and Kevin Newton, were supervising the gym. (Plaintiff's EBT at 11, 14). Plaintiff informed the deputies that he needed medical attention because he was having a sharp pain in his leg, but they were "blowing [him] off." (Id. at 12). The other inmates started getting aggressive, and after five minutes the deputies called "medical." (Id. ). Plaintiff was assisted to medical by other inmates, where he was seen by Nurse Johnson. (Id. at 12-13). The medical unit was located right off the door to the gym. (Id. at 16-17). Plaintiff estimated that it was between 13 to 15 minutes between the time he fell until the time he was seen by medical. (Id. at 15). Plaintiff testified that the deputies should have "called a code blue" for a medical emergency so that medical staff could have reported to assist him with a wheelchair or stretcher. (Id. at 18-19).
Plaintiff testified that, following his visit to medical, he returned to his cell and requested ice. (Id. at 23). However, deputy John Doe would not provide Plaintiff with ice and informed Plaintiff that was something he had to obtain from medical. (Id. at 24).
Plaintiff filed an Internal Communication Form ("ICF") regarding his knee injury on December 30, 2014. (Deasis Action, Dkt. 141-4 at ¶¶ 2, 4-5; Dkt. 141-5 at 222-23). The ICF did not discuss any action or inaction taken by the deputies Sanna or Newton at the time Plaintiff sustained his injury, but did state that Plaintiff had requested ice which he had not been provided. (Deasis Action, Dkt. 141-4 at ¶ 6; Dkt. 141-5 at 222-23). On April 22, 2015, Plaintiff filed Inmate Grievance 15-128A regarding his knee. (Deasis Action; Dkt. 141-4 at ¶ 7; see also Dkt. 141-5 at 113). The grievance did not complain of any action or inaction by the Deputy Defendants, but rather focused on the fact that medical staff had not referred Plaintiff for surgery. (Deasis Action, Dkt. 141-4 at ¶ 8; Dkt. 141-5 at 113-14). Thereafter, Plaintiff filed Inmate Grievance 15-125B on May 2, 2015, which alleged that deputies Sanna and Newton did not immediately assist Plaintiff when he fell. (Deasis Action, Dkt. 141-4 at ¶¶ 9-10; Dkt. 141-5 at 116-17).
PROCEDURAL HISTORY
I. Deasis Action
Plaintiff commenced the Deasis Action on June 2, 2016, against defendants Dr. Deasis, Nurse Johnson, John Does 1-3, and Superintendent Harlieng, alleging that they were deliberately indifferent to his medical needs. (Deasis Action, Dkt. 1). Plaintiff's claims against Superintendent Harlieng were dismissed by the Court on June 16, 2016. (Id. , Dkt. 3). The remaining Defendants, including the John Doe defendants subsequently identified as deputies Newton and Sanna, answered the complaint, and the case was referred to the Hon. Marian W. Payson, United States Magistrate Judge, for discovery. (Id. , Dkt. 13; Dkt. 14; Dkt. 33; Dkt. 43; Dkt. 50). On March 26, 2020, the Court adopted Judge Payson's Report and Recommendation that Plaintiff be granted leave to file an amended complaint modifying each of the five claims for deliberate indifference against Dr. Deasis, Nurse Johnson, and the Deputy Defendants, which were essentially the same in both the original complaint and the amended complaint, but corrected some dates and names based on information Plaintiff learned in discovery. (Id. , Dkt. 129; Dkt. 130; see also Dkt. 105-1).
On May 4, 2020, Dr. Deasis and Nurse Johnson filed a motion for summary judgment (id. , Dkt. 133), and on June 29, 2020, the Deputy Defendants moved for summary judgment (id. , Dkt. 141). The Court issued scheduling orders on both motions, which set response deadlines for Plaintiff, and advised him that his failure to file a response supported by his own sworn affidavits or other documentary evidence could result in the dismissal of his claims. (Id. , Dkt. 134; Dkt. 142). Thereafter, between June 30, 2020 and November 9, 2020, Plaintiff requested several extensions of time to respond to the motions for summary judgment (id. , Dkt. 143; Dkt. 148; Dkt. 151; Dkt. 153), which the Court granted. On January 4, 2021, the Court granted Plaintiff's request for one last extension of time to file a response to Defendants’ motions for summary judgment but warned Plaintiff that no further extensions of time would be granted. (Id. , Dkt. 155; Dkt. 156). On January 14, 2021, the Court denied Plaintiff's further request for an extension of time (id. , Dkt. 157), explaining that the most recent request was Plaintiff's sixth request for an extension, the motions had been pending for over seven months or more, and that under the circumstances, the February 3, 2021 response deadline afforded Plaintiff more than a sufficient opportunity to file responses to the pending motions. (Id. , Dkt. 158). Plaintiff did not file a response to either of the motions for summary judgment.
II. Pray Action
Plaintiff commenced the Pray Action on September 27, 2016, against defendants Corporal Gentile, Deputy Peter MoFardin, and Nurse Pray. (Pray Action, Dkt. 1). Plaintiff alleges that Nurse Pray was deliberately indifferent to his medical needs when she failed to provide him treatment for his knee following an altercation with defendants Mofardin and Gentile. (Id. ). Defendants answered the complaint, and the case was referred to the Hon. Jonathan W. Feldman, United States Magistrate Judge, for discovery. (Id. , Dkt. 12; Dkt. 13; Dkt. 20). The case was eventually reassigned to Judge Payson. On May 4, 2020, Nurse Pray filed a motion for summary judgment. (Id. , Dkt. 96). The Court issued a scheduling order for the motion, which set a response deadline for Plaintiff, and advised him that his failure to file a response supported by his own sworn affidavits or other documentary evidence could result in the dismissal of his claims. (Id. , Dkt. 99). Thereafter, between May 26, 2020 and November 9, 2020, Plaintiff filed several extensions of time to file a response (id. , Dkt. 100; Dkt. 104; Dkt. 107; Dkt. 110), which the Court granted. On January 4, 2021, the Court granted Plaintiff's fifth request for an extension of time to file a response to Defendant's motion for summary judgment and advised him that no further extensions would be granted. (Id. , Dkt. 113). On January 14, 2021, the Court denied an additional request for an extension of time, explaining that it was Plaintiff's sixth request for an extension, the motions had been pending since May 2020, and that under the circumstances, the February 3, 2021 response deadline was more than a sufficient opportunity for Plaintiff to file a response to the pending motion. (Id. , Dkt. 115). Plaintiff did not file a response to the motion for summary judgment.
DISCUSSION
I. Legal Standard for Motion for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes "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 Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the Court finds that no rational jury could find in favor of that party. Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).
"The moving party bears the burden of showing the absence of a genuine dispute as to any material fact...." Crawford v. Franklin Credit Mgmt. Corp. , 758 F.3d 473, 486 (2d Cir. 2014). "Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Johnson v. Xerox Corp. , 838 F. Supp. 2d 99, 103 (W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation." Robinson v. Concentra Health Servs., Inc. , 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co. , 654 F.3d 347, 358 (2d Cir. 2011) ). Specifically, the non-moving party "must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact." Brown , 654 F.3d at 358. Indeed, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
II. Plaintiff's Deliberate Indifference Claims
"To state a constitutional claim of inadequate medical care, a prisoner must allege that a defendant was deliberately indifferent to his serious medical needs." Horace v. Gibbs , 802 F. App'x 11, 13 (2d Cir. 2020). A plaintiff making such a claim must meet two requirements: (1) he had a "serious medical need," and (2) the defendant "acted with deliberate indifference to such needs." Charles v. Orange Cnty. , 925 F.3d 73, 86 (2d Cir. 2019).
"The first requirement is objective: the alleged deprivation of adequate medical care must be sufficiently serious." Spavone v. N. Y. State Dep't of Corr. Servs. , 719 F.3d 127, 138 (2d Cir. 2013) (citation and quotation marks omitted). Under the Fourteenth Amendment, "to establish an objective deprivation, the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health, which includes the risk of serious damage to physical and mental soundness." Darnell v. Pineiro , 849 F.3d 17, 30 (2d Cir. 2017) (internal quotations and citations omitted). "The serious medical needs standard contemplates a condition of urgency such as one that may produce death, degeneration, or extreme pain." Charles , 925 F.3d at 86. "There is no ‘static test’ to determine whether a deprivation is sufficiently serious; instead, the conditions themselves must be evaluated in light of contemporary standards of decency." Horace , 802 F. App'x at 14 (quoting Darnell , 849 F.3d at 30 ). "In determining whether a medical need is sufficiently serious to be cognizable as a basis for a constitutional claim for deprivation of medical care, we consider factors such as whether a reasonable doctor or patient would find the injury important and worthy of treatment, whether the medical condition significantly affects an individual's daily activities, and whether the illness or injury inflicts chronic and substantial pain." Charles , 925 F.3d at 86 (citing Chance v. Armstrong , 143 F.3d 698, 702 (2d Cir. 1998) ); see also Horace , 802 F. App'x at 14.
The second requirement is the mens rea prong. Horace , 802 F. App'x at 14. Prior to the Second Circuit's decision in Darnell , the mens rea prong was assessed subjectively in claims brought under the Eighth and Fourteenth Amendments. However, in Darnell , the Second Circuit held that, under the Fourteenth Amendment, the plaintiff must show that the defendant "acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety." Darnell , 849 F.3d at 35. Negligent conduct does not satisfy this standard. Id. at 36 ("[A]ny § 1983 claim for a violation of due process requires proof of a mens rea greater than mere negligence.... A detainee must prove that an official acted intentionally or recklessly, and not merely negligently."). "Accordingly, the mens rea prong of a deliberate indifference claim brought by a pretrial detainee is now to be assessed objectively." Davis v. McCready , 283 F. Supp. 3d 108, 117 (S.D.N.Y. 2017).
A. Claims Against Dr. Deasis, Nurse Johnson, and Nurse Pray
Liberally construing his complaints, Plaintiff alleges that Dr. Deasis, Nurse Johnson, and Nurse Pray were deliberately indifferent to his medical needs because: (1) on the date of his injury, Nurse Johnson failed to provide him with ice or send him to the hospital; (2) Dr. Deasis did not properly treat his injury and failed to refer him for surgery; and (3) Nurse Pray failed to provide treatment for his knee after an altercation with deputies MoFardin and Corporal Gentile. (See Deasis Action, Dkt. 105-1; Pray Action, Dkt. 1).
Dr. Deasis, Nurse Johnson, and Nurse Pray argue that they are entitled to summary judgment because (1) Plaintiff's undisputed minor knee injury—an ACL and meniscal tear with stability—does not constitute a cognizable 42 U.S.C. § 1983 objective serious medical need, and (2) Plaintiff cannot establish deliberate indifference because he received prompt treatment that was consistent with applicable standards of medical care. (Deasis Action, Dkt. 133-10 at 6; Pray Action, Dkt. 96-10 at 6).
1. Serious Medical Need
"A plaintiff's allegation that he suffered a knee injury in and of itself does not constitute a serious medical need.... Generally, knee injuries have been [held] insufficient to trigger ... [constitutional] protection." Guarneri v. Hazzard , No. 9:06-CV-985(NAM/DRH), 2010 WL 1064330, at *11 (N.D.N.Y. Mar. 22, 2010) (internal citations and quotations omitted) (collecting cases); see also Johnson v. Wright , 477 F. Supp. 2d 572, 576 (W.D.N.Y. 2007) ("While the Court is not categorically ruling out knee injuries as a possible basis for ... [Plaintiff's] claim, the injury alleged here (which the evidence indicates was a torn meniscus ...), was not sufficiently serious to give rise to a constitutional claim."), aff'd , 324 F. App'x 144 (2d Cir. 2009) ; but see Williamson v. Naqvi , No. 3:19cv4(MPS), 2019 WL 2718476, at *4 (D. Conn. June 27, 2019) (plaintiff's allegations that he suffered from "chronic and severe pain in his knee and an inability to fully extend the knee – from August 2012 to March 2017" constituted serious medical condition).
Although the Guarneri and Johnson cases involved claims brought pursuant to the Eighth Amendment, the objective seriousness inquiry is the same under the Eighth and Fourteenth Amendments. See Darnell , 849 F.3d at 30 ; Horace , 802 F. App'x at 14.
There is evidence in the record relevant to the seriousness of Plaintiff's left knee injury. For example, Plaintiff testified that he was initially in "severe pain" following his injury, and he needed assistance traveling the short distance from the gym to the medical unit. (Plaintiff's EBT at 11, 13). Dr. Deasis examined Plaintiff's knee frequently and apparently found the injury was serious enough to warrant outside consultations with a specialist. Plaintiff's injury, a "stigma of pivot shift injury with torn ACL, kissing bone contusions, medial collateral ligament ("MCL") sprain, and bilateral meniscal tears," was diagnosed by an MRI. (Id. at 39; see also Strong Records at 19-20). Although surgery was not initially recommended, Plaintiff's condition worsened over time and he was ultimately recommended for surgery because he developed fluid in his knee. In other words, there is at least some objective evidence in the record suggesting that Plaintiff experienced chronic pain following his December 2014 left knee injury. However, the Court need not resolve the issue of whether Plaintiff's knee injury, as it existed during the period Dr. Deasis, Nurse Johnson, and Nurse Pray treated him, constituted a "serious medical need" because, as explained below, no reasonable juror could conclude that they were deliberately indifferent to Plaintiff's medical needs.
2. Deliberate Indifference
The Court concludes that there is no evidence in the record supporting Plaintiff's allegation that Dr. Deasis, Nurse Johnson, and Nurse Pray were deliberately indifferent to his medical needs. To the contrary—the record before the Court reflects that Plaintiff received prompt and frequent treatment from each of these medical providers.
As explained in detail above, Dr. Deasis examined Plaintiff approximately every one-to-two weeks, and sometimes more frequently, following his knee injury. Dr. Deasis took steps to ensure that Plaintiff was referred for imaging studies and was examined by an orthopedic specialist. He responded to Plaintiff's complaints of pain by changing his medications. The course of treatment recommended by Dr. Deasis—that Plaintiff wear a knee brace, continue pain medications, and limit gym activity—was the same course of treatment recommended by the orthopedic specialist at Strong, and Plaintiff did not dispute this fact at his deposition. (See Plaintiff's EBT at 129-30). Like Dr. Deasis, the orthopedist at Strong did not recommend that Plaintiff receive immediate surgery. (Id. at 129).
In support of their claim that they were not deliberately indifferent to Plaintiff's medical needs, Dr. Deasis, Nurse Johnson, and Nurse Pray submit the Declaration of John J. Cambareri, M.D., a board-certified physician and surgeon specializing in orthopedics and orthopedic surgery, who is licensed to practice medicine in New York. (Deasis Action, Dkt. 133-5; Pray Action, Dkt. 96-5 (the "Cambareri Decl.")). In preparation for rendering his opinion, Dr. Cambareri reviewed Plaintiff's complaints, his medical records from MCJ and Strong, and Plaintiff's deposition transcript. (Id. at ¶ 4). Dr. Deasis opined:
Based upon my review of Plaintiff's medical records, my extensive experience providing treatment and surgery to patients suffering from orthopedic injuries, and my medical training, qualifications, expertise and experience, it is my opinion, within a reasonable degree of medical certainty, that Plaintiff received timely medical attention and referrals, and was never denied any urgent or necessary medical intervention while he was under the care of Dr. Deasis, Nurse Johnson, and Nurse Pray. In rendering care to Plaintiff for his knee injury, Defendants met or exceeded the community standard of medical orthopedic care, and were not in any way deliberately indifferent to Plaintiff's medical needs.
(Id. at ¶ 8).
Although Plaintiff alleges that Dr. Deasis failed to refer him for knee surgery, Dr. Cambareri opined that "[w]hile under the care of Defendants, Plaintiff had a small or minor ACL and meniscal tears, with an MCL sprain," and the "mere presence of such tears does not warrant surgery," which is "entirely elective," but "generally indicated if there is recurrent instability in the injured knee." (Id. at ¶ 30). Dr. Cambareri also explained that surgery is dependent upon several factors, including if the patient had recurrent instability in the knee, the patient's ability to actively participate in post-surgical care, and risks of complication. (Id. ). Dr. Cambareri concluded that, based on his review of Plaintiff's examinations while he was in the care of Dr. Deasis, which indicated that his knee was stable and did not sustain severe trauma, there were no clinical findings indicating that surgery was necessary or appropriate. (Id. at ¶ 31). The course of treatment recommended by Dr. Deasis was consistent not only with Dr. Cambareri's opinion, but also with the treatment regimen recommended by the orthopedic specialist at Strong, who also found that surgery was not necessary. Plaintiff has failed to submit any evidence, aside from his own assertions that he believed surgery was necessary, to rebut the opinion offered by Dr. Cambareri. See Hill v. Curcione , 657 F.3d 116, 124 (2d Cir. 2011) (plaintiff failed to allege deliberate indifference where there was "no indication ... that any medical provider recommended treatment different from the treatment that [plaintiff] was afforded").
Likewise, the Court finds that there is no genuine issue of material fact relating to the treatment Plaintiff received from Nurse Johnson and Nurse Pray. Plaintiff's conclusory statements in his complaints that they "failed to treat him" are belied by the record, including his own testimony at his deposition. Dr. Cambareri opined that Nurse Johnson's recommendation that Plaintiff apply ice and rest following his initial injury was medically appropriate, in light of her examination findings and considering Plaintiff's complaint. (Cambareri Decl., at ¶ 34). Although Plaintiff testified at his deposition that he did not receive ice from a deputy in his block, he also testified that he did not inform Nurse Johnson that he did not receive ice. (Plaintiff's EBT at 105). In other words, no reasonable juror could conclude that the fact that Plaintiff did not receive ice was due to deliberate indifference on the part of Nurse Johnson. Regarding Plaintiff's treatment by Nurse Pray, Dr. Cambareri opined that her recommendation on January 9, 2015, that Plaintiff continue to abide by the treatment and instructions provided by Dr. Deasis when his condition appeared to be the same four days earlier, and her immediate attending to Plaintiff following the February 6, 2015 altercation and scheduling Plaintiff to see Dr. Deasis that afternoon, were "medically appropriate and timely under the circumstances." (Id. at ¶ 35). Again, Plaintiff has failed to submit any evidence suggesting that the treatment he received from Nurse Johnson or Nurse Pray amounted to deliberate indifference.
At his deposition, Plaintiff testified that he agreed he received medical treatment and was evaluated when he requested it, but that Dr. Deasis, Nurse Johnson, and Nurse Pray did not provide the treatment he felt was necessary and that he disagreed with the course of the treatment. (Plaintiff's EBT at 133-35). However, "[i]t is well-established that mere disagreement over the proper treatment does not create a constitutional claim." Chance , 143 F.3d at 703 ; see also Rutherford v. Correct Care Sols., LLC , No. 18 CV 12049 (VB), 2020 WL 550701, at *6 (S.D.N.Y. Feb. 4, 2020) ("So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to a constitutional violation.") (citation omitted); see also Horace , 802 F. App'x at 14 (affirming district court's dismissal of deliberate indifference claim where the plaintiff "admit[ted] that Defendants attended to his alleged medical conditions.").
As noted above, Plaintiff has not filed a response to Defendants’ motions, and therefore he has not submitted any of his own proof, such as proof controverting the opinion offered by Dr. Cambareri that Defendants’ treatment of him was commensurate with the standard of care both in a correctional setting and in the community, and at no point during his incarceration at MCJ was further treatment, including surgical intervention, medically necessary or appropriate. Nor does Plaintiff's testimony at his deposition create a genuine issue of material fact. Accordingly, the Court grants the motions for summary judgment filed by Dr. Deasis, Nurse Johnson, and Nurse Pray, and Plaintiff's deliberate indifference claims are dismissed as to these individuals.
B. Claims Against the Deputy Defendants
The Deputy Defendants move for summary judgment on the basis that (1) Plaintiff failed to exhaust his administrative remedies, (2) Plaintiff has not demonstrated that they were deliberately indifferent to his medical needs, and (3) they are entitled to qualified immunity. (Deasis Action, Dkt. 141-3). As to deputies Sanna and Newton, Plaintiff claims that they should have responded to his basketball injury by calling a "code blue," so that medical could immediately address his injuries. (Plaintiff's EBT at 18). Further, as to deputy John Doe, Plaintiff testified that he should have called medical and addressed getting Plaintiff ice. (Id. at 25). As explained above, Plaintiff alleges that these events took place on the date of his injury, i.e. , December 29, 2014. 1. Administrative Exhaustion
The Prison Litigation Reform Act of 1995 ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle , 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). To satisfy this requirement, the evidence must demonstrate the "proper exhaustion of administrative remedies." Woodford v. Ngo , 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). "Compliance with prison grievance procedures ... is all that is required by the PLRA to ‘properly exhaust.’ " Jones v. Bock , 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). As such, "[t]he exhaustion inquiry ... requires that [the court] look at the state prison procedures and the prisoner's grievance to determine whether the prisoner has complied with those procedures." Espinal v. Goord , 558 F.3d 119, 124 (2d Cir. 2009). "Exhaustion is mandatory—unexhausted claims may not be pursued in federal court." Amador v. Andrews , 655 F.3d 89, 96 (2d Cir. 2011).
In both his original complaint and in his amended complaint, Plaintiff alleges that he exhausted his administrative remedies for his claims against the Deputy Defendants and that his grievances were denied. (See Deasis Action, Dkt. 1 at 6, 10, 12; Dkt. 105 at 13, 15, 18). Plaintiff also states that he appealed the denial of his grievances, and his appeals were denied. (Id. ).
The Deputy Defendants argue that Plaintiff did not properly grieve his claims because he did not file a grievance within five days of December 29, 2014, when the incidents occurred, in compliance with the MCJ grievance procedure. The Court has reviewed the evidence submitted by Defendants, which consists of an Inmate Communications Form ("ICF"), as well as Inmate Grievance 15-128A and Inmate Grievance 15-128B. (Deasis Action, Dkt. 141-5 at 113-14, 116-17, 222-23). Defendants also submit the Declaration of Shaun D. Fennessy, a corporal with the Monroe County Sheriff's Office who serves as the grievance coordinator. (Deasis Action, Dkt. 141-2 ("Fennessy Decl."), at ¶¶ 1-2). Corporal Fennessy explained that during the reception/classification period for entering the jail, all inmates receive a copy of the Inmate Handbook, which includes the inmate rules and regulations, as well as instructions on how to resolve complaints and grievances. (Id. at ¶¶ 7-9). Corporal Fennessy explained MCJ's grievance procedure, which is included below in relevant part:
First, the Inmate must complete the complaint process, which involves:
a. Trying to resolve it with his housing supervisor or the duty sergeant on rounds.
b. If unsatisfied, the inmate may request an Internal Communication Form.
c. The inmate shall write a brief description to the Superintendent about his problem.
d. The Superintendent or his designee will review the complaint and determine whether his complaint has merit and if a remedy is warranted.
If dissatisfied with the decision received through the complaint process, the inmate may forward his complaint through the grievance process. The grievance process at the Monroe County Jail involves:
a. The inmate may request a grievance form by notifying his housing area supervisor.
b. The inmate's housing officer then contacts a Grievance Officer.
c. The grievance must be filed within five (5) days of the date of the act or occurrence giving rise to his complaint.
d. The grievance form must be submitted to the Jail Grievance Coordinator through outgoing mail for the inmate's housing area.
e. The Grievance Officer will answer the grievance within five (5) business days of receipt of the form....
(Id. at ¶¶ 10-11).
Corporal Fennessy reviewed Plaintiff's ICFs and grievances submitted during the time he was held at MCJ, and concluded that "the first time that Plaintiff filed a grievance related to the injury to his knee that he sustained while playing basketball on December 29, 2014, was on April 23, 2015." (Id. at ¶ 14).
The ICF is dated December 30, 2014, and states that Plaintiff was injured in a basketball game on December 29, 2014, fell and twisted his knee, and saw the doctor 30 minutes later. (Deasis Action, Dkt. 141-5 at 222-23). The ICF explains that Plaintiff told the doctor that he was in "severe pain" and that he heard his knee "snap." (Id. ). The ICF also states that he "requested ice for my knee which ha[s] not been provided." (Id. ). The ICF does not include a discussion of any improper conduct allegedly taken by deputies Sanna or Newton, who were in the gym when Plaintiff's injury occurred.
Inmate Grievance 15-128A, which is dated April 22, 2015, states that Plaintiff injured his knee at the gym on December 29, 2014 while playing basketball. (Deasis Action, Dkt. 141-5 at 113-14). Plaintiff explained that since that date, he had severe pain in his left knee, had expressed his pain during sick calls, the medication and knee braces he was provided were not effective, and that a March 2015 MRI revealed that he had a torn ACL. (Id. ). Plaintiff further explained that he was not getting proper medical treatment because he required surgery. (Id. ). Thereafter, Plaintiff filed Inmate Grievance 15-128B on May 2, 2015. (Id. at 116-18). In that grievance, Plaintiff stated that at the time he sustained his injury, he was on the floor in pain for approximately five minutes and the deputies "stood by and observed me on the ground not assisting me." (Id. at 117). Plaintiff further stated that when he approached a deputy and "requested medical attention, he called medical and shortly after [Plaintiff] was assisted to medical." (Id. ). Plaintiff further reiterated his complaints that the treatment he was currently receiving was not adequate and that he required surgery. (Id. at 118).
With regard to his claim against the John Doe deputy who allegedly failed to provide him with ice, the Court concludes that Plaintiff has failed to exhaust his administrative remedies. As an initial matter, although Plaintiff submitted an ICF on December 30, 2014 seeking medical treatment and stating that he did not receive ice, the ICF is not a formal grievance. See Scott v. Kastner-Smith , 298 F. Supp. 3d 545, 552 (W.D.N.Y. 2018) ("an inmate medical request slip is not an approved method for filing a grievance under the County Jail's procedures"); see also Cruz v. DeMarco , No. 12-CV-4277 (JFB)(GRB), 2013 WL 4719086, at *7 (E.D.N.Y. Sept. 3, 2013) ("Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules, and thus, submitting sick call requests [does] not properly exhaust [an agency's] available administrative remedies." (internal quotations and citations omitted)); Williams v. Metro. Det. Ctr. , 418 F. Supp. 2d 96, 101 (E.D.N.Y. 2005) ("While the complaint shows that [the plaintiff] did make efforts to gain medical attention through letters and conversations with [the warden] and the medical staff, these efforts do not include the required steps of the PLRA's administrative remedy process."). Even if the ICF could be considered part of the formal grievance process, Plaintiff did not take any additional action on his complaint that he did not receive ice, as it was not included in either of his two subsequent grievances relating to his knee injury. As explained by Corporal Fennessy, the Inmate Handbook lays out the procedures for filing a formal grievance—of which Plaintiff was aware, given that he properly filed other grievances during his time at MCJ—and he has offered no explanation as to why he did not file a formal grievance as to his claim against deputy John Doe for failing to provide him with ice.
Further, Plaintiff's December 29, 2014 ICF states simply that he requested ice but did not receive it. While an inmate "is not required to name all responsible parties in a grievance .... [he] must provide a specific description of the problem, that was sufficient to alert the prison to the nature of the wrong for which redress was sought, and provide sufficient notice of wrongdoing to cause them to investigate any such claim." Demuth v. White , No. 9:18-CV-915(MAD/CFH), 2020 WL 1030649, at *4 (N.D.N.Y. Mar. 3, 2020) (internal quotations and citations omitted). Here, the ICF does not provide any information explaining when Plaintiff requested ice, when he was denied ice, where he was denied ice, or any description of the individual who refused to provide him with ice. Accordingly, the Court concludes that Plaintiff has failed to properly grieve his claim against defendant John Doe, and the claim against him is therefore dismissed.
Generally, a dismissal for failure to exhaust under the PLRA is dismissed without prejudice, particularly when the dismissal is based on a curable, procedural flaw. However, because Plaintiff has long since been transferred from MCJ and can no longer cure his defect, the Court dismisses Plaintiff's claims with prejudice. See Hernandez v. Doe 1-7 , 416 F. Supp. 3d 163, 166 (E.D.N.Y. 2018) ("Where an inmate can no longer exhaust administrative remedies because he has been transferred, however, and had ample opportunity to exhaust prior to being transferred, but failed to do so, dismissal with prejudice is proper.").
As to Plaintiff's claims against deputies Sanna and Newton, based on the record before the Court, it is undisputed that Plaintiff failed to timely exhaust his administrative remedies by filing a formal grievance within five days of December 29, 2014. Plaintiff offers no evidence that raises a genuine issue of material fact as to whether he timely filed a formal grievance form within the five-day period pursuant to MCJ's grievance procedures. "The Supreme Court has held that 42 U.S.C. § 1997e(a) requires ‘proper exhaustion’ which includes complying with all ‘procedural rules,’ including filing deadlines, as defined by the particular prison grievance system. Thus, ‘untimely or otherwise procedurally defective attempts to secure administrative remedies do not satisfy the PLRA's exhaustion requirements.’ " Pena v. Semple , No. 3:19cv124(KAD), 2021 WL 311278, at *9 (D. Conn. Jan. 29, 2021) (quoting Woodford v. Ngo , 548 U.S. 81, 90-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) and Ruggiero v. Cnty. of Orange , 467 F.3d 170, 176 (2d Cir. 2006) ). However, the Second Circuit has held that "the PLRA is satisfied by an untimely filing of a grievance if it is accepted and decided on the merits by the appropriate prison authority." Hill , 657 F.3d at 125. Here, the record before the Court indicates that both Grievance 15-128A and Grievance 15-128B were not rejected as untimely, but rather were addressed on the merits. (See Deasis Action, Dkt. 141-5 at 115, 119-26). Accordingly, Plaintiff's claims against deputies Sanna and Newton were properly exhausted.
2. Deliberate Indifference
Although Plaintiff adequately exhausted his claims against deputies Sanna and Newton, the Court concludes that no reasonable jury would find that their actions on December 29, 2014—which caused only a minutes-long delay in addressing Plaintiff's left knee injury—amounted to deliberate indifference to a serious medical need. Plaintiff testified that following his injury, he remained on the ground for three minutes, after which he was helped over to deputies Sanna and Newton. (Plaintiff's EBT at 11). Deputies Sanna and Newton called medical after five minutes (id. at 12), and medical arrived five minutes later (id. ), with the total time between Plaintiff's injury and his receiving medical treatment amounting to only 13 to 15 minutes (id. at 15). Two inmates assisted Plaintiff the short distance to medical, during which Plaintiff used the inmates as "crutches" and "hopped" on his right leg. (Id. at 16).
"In the situation where a plaintiff receives medical treatment, but the treatment is delayed, it is appropriate to focus on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone to determine whether the plaintiff has stated a claim for deliberate indifference to his medical needs.... A plaintiff may show delayed medical care warrants constitutional protection by alleging the delay worsened his condition or increased the risk of future injury." Cuffee v. City of N.Y. , No. 15cv8916(PGG)(DF), 2017 WL 1232737, at *9 (S.D.N.Y. Mar. 3, 2017) (internal alterations, quotations, and citations omitted) (emphasis in original), vacated on other grounds , 2019 WL 11779186 (S.D.N.Y. Mar. 20, 2019) ; see also Smith v. Carpenter , 316 F.3d 178, 185 (2d Cir. 2003). "Short-term delays in medical care generally fall short of the level of ‘seriousness’ that the deliberate indifference standard requires." Cuffee , 2017 WL 1232737, at *9 (citing DeMeo v. Koenigsmann , No. 11cv7099 (HBP), 2015 WL 1283660, at *11 (S.D.N.Y. Mar. 20, 2015) (stating that, "[a]lthough a delay in providing necessary medical care may in some cases constitute deliberate indifference, [the Second Circuit] has reserved such a classification for cases in which, for example, officials deliberately delayed care as a form of punishment, ignored a ‘life-threatening and fast-degenerating’ condition for three days, or delayed major surgery for over two years," although also noting that "[t]hese categories are not exclusive" (internal quotation marks and citations omitted))).
Here, Plaintiff does not offer any evidence that at the time he sustained his injury he was excessively bleeding, unresponsive, or otherwise required urgent medical care, nor is there evidence suggesting that deputies Sanna or Newton meant to punish Plaintiff. Rather, the record reflects that deputies Sanna and Newton called medical shortly after Plaintiff sustained his injury, and Plaintiff has offered no evidence that their failure to call a "code blue" posed an excessive risk to his health or safety, particularly when other inmates were assisting Plaintiff and the medical unit was a short distance from the gym. See Purcelle v. Thomas , No. 9:18-CV-77(GLS/TWD), 2020 WL 1516421, at *8 (N.D.N.Y. Mar. 6, 2020) (plaintiff's medical indifference claim, which was premised on his delay in receiving treatment, was "insufficient to rise to the level of a constitutional violation," where plaintiff received medical treatment within hours), adopted , 2020 WL 1511079 (N.D.N.Y. Mar. 30, 2020) ; see also Cuffee , 2017 WL 1232737, at *11 ("[W]ithout more, Plaintiff's conclusory allegation that the delay in medical treatment ‘caused [him] further harm,’ does not satisfy the objective prong of either an Eighth or 14th Amendment deliberate-indifference claim against either of the Correction Officer Defendants."); Frith v. City of N.Y. , 203 F. Supp. 3d 386, 390 (S.D.N.Y. 2016) (one-day delay in dental treatment did not rise to the level of an objective constitutional violation). Indeed, at his deposition, Plaintiff testified that he had no evidence supporting his assertion that the short period of time between the time he sustained his injury and when the deputies called medical made his injury worse. (Plaintiff's EBT at 15, 21). Accordingly, the Court concludes that the actions taken by deputies Newton and Sanna did not amount to a constitutional violation of Plaintiff's right to medical treatment, and Plaintiff's claims against them are dismissed.
CONCLUSION
Accordingly, the Court grants the motion for summary judgment filed by Dr. Deasis and Nurse Johnson (Deasis Action, Dkt. 133) and the motion for summary judgment filed by the Deputy Defendants (Deasis Action, Dkt. 141). The Clerk of Court is directed to close the case at Civil Action No. 6:16-CV-0370. Further, the Court grants the motion for summary judgment filed by defendant Pray (Pray Action, Dkt. 96).
SO ORDERED.