Opinion
Civil Action No. 9:12-CV-0448 (GTS/DEP)
02-26-2015
HENRY BENITEZ, Plaintiff, v. WILLIAM PARMER and CARL J. KOENIGSMANN, Defendants.
APPEARANCES FOR PLAINTIFF: HENRY BENITEZ, Pro Se 97-A-2553 Five Points Correctional Facility Caller Box 119 Romulus, NY 14541 FOR DEFENDANT: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 CATHY Y. SHEEHAN, ESQ. Assistant Attorney General
APPEARANCES FOR PLAINTIFF: HENRY BENITEZ, Pro Se
97-A-2553
Five Points Correctional Facility
Caller Box 119
Romulus, NY 14541
FOR DEFENDANT:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
CATHY Y. SHEEHAN, ESQ.
Assistant Attorney General
DAVID E. PEEBLES U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Henry Benitez, a prolific litigant and New York State prison inmate, has commenced this action, pursuant to 42 U.S.C. §1983, claiming that eleven individuals employed by the New York State Department of Corrections and Community Supervision ("DOCCS") violated his civil rights. Only one of plaintiff's original causes of action remains pending before the court following earlier court decisions dismissing the others. Plaintiff contends that defendant William Parmer, a nurse practitioner, and Dr. Carl J. Koenigsmann, who, at the relevant times, held the position of Clinical Physician III Regional Medical Director with the DOCCS, deprived him of constitutionally adequate medical treatment for his chronic Hepatitis C ("HCV").
Plaintiff has filed at least thirty-three other pro se actions in this and other districts within the Second Circuit complaining of the conditions of his confinement. Dkt. No. 9 at 3. At least two of those have involved complaints regarding the medical treatment provided for HCV. See Benitez v. Ham, No. 04-CV-1159 (N.D.N.Y. filed Oct. 6, 2004); Benitez v. Mailloux, No. 05-CV-1160 (N.D.N.Y. filed Sept. 14, 2004). Neither of the individuals remaining as defendants in this case was among the seventy-five defendants named in Mailloux or the twenty-one defendants sued in Ham.
Now that discovery in the action is closed, the remaining two defendants have moved for the entry of summary judgment dismissing plaintiff's remaining claims against them. For the reasons set forth below, I recommend that their motion be granted. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is a prison inmate currently being held by the DOCCS, in whose custody he has been since 1997. See generally Dkt. No. 30; Dkt. No. 106 at 4; Dkt. No. 106-3 at 20. Between September 13, 2002 and October 11, 2013, plaintiff was confined at the Upstate Correctional Facility ("Upstate") where the events relevant to his claims occurred. Dkt. No. 106 at 4, 18.
Upstate is a maximum security prison comprised exclusively of special housing unit ("SHU") cells in which inmates are confined for twenty-three hours each day, primarily for disciplinary reasons. Samuels v. Selsky, No. 01-CV-8235, 2002 WL 31040370, at *4 n.11 (S.D.N.Y. Sept. 12, 2002). In his affidavit submitted in opposition to the pending motion, plaintiff confirms that he was transferred from Auburn Correctional Facility into a SHU cell at Upstate. Dkt. No. 106 at 18.
In March 1996, prior to his imprisonment, plaintiff contracted HCV. Dkt. No. 106 at 4. On July 23, 2003, plaintiff underwent a liver biopsy performed at the direction of Dr. Evelyn Weissman, Upstate's Medical Program Director at the time. Dkt. No. 30 at 10; Dkt. No. 106 at 19-20. The results of that biopsy indicated that plaintiff's liver contained "enlarged portal areas containing many chronic inflammatory cells" and "increased connective tissue" due to "chronic Hepatitis grade I." Dkt. No. 106-3 at 191; see also Dkt. No. 30 at 10; Dkt. No. 106 at 20. As a result of the biopsy, Dr. Lester Wright, who at the time served as the DOCCS Chief Medical Officer, rejected a recommendation made by plaintiff's primary care provider that plaintiff be administered anti-viral HCV therapy. Dkt. No. 30 at 10; Dkt. No. 106 at 20. Dr. Wright explained that, because plaintiff's liver was intact, his condition only needed to be monitored every six months and added that if there was a significant increase indicating fibrosis, treatment would be appropriate at the time. Dkt. No. 30 at 11; Dkt. No.106 at 20; Dkt. No. 106-3 at 154-56. Plaintiff's medical condition was therefore monitored on a regular basis leading up to September 2011. See, e.g., Dkt. No. 103 at 2-12.
Defendant Parmer was plaintiff's assigned primary medical care provider at Upstate from 2008 until March of 2012. Dkt. No. 30 at 11-12. According to the plaintiff, on each occasion when he met with defendant Parmer between 2008 and 2011, he requested, but was denied, a referral for a new liver biopsy. Dkt. No. 106 at 28-29. Plaintiff contends that defendant Parmer's denial was inconsistent with the DOCCS Hepatitis C Primary Care Practice Guidelines ("DOCCS HCV Guidelines"). Dkt. No. 30 at 27-28.
On September 30, 2011, defendant Parmer recommended that plaintiff be considered for HCV therapy. Dkt. No. 30 at 15; Dkt. No. 106 at 29-30; see also Dkt. No. 103 at 72. The request was reviewed by Dr. Glenn Stanford Schroyer, who, on October 12, 2011, deferred decision pending an updated liver biopsy, and noted that the circumstances "sound[] like a high risk case." Dkt. No. 103 at 72.
Plaintiff alleges that, because defendant Parmer knew that this recommendation would be denied absent an updated liver biopsy, Parmer made the recommendation with the intention of delaying plaintiff's treatment. Dkt. No. 30 at 15-16; Dkt. No. 106 at 29-30. Plaintiff offers no evidence, however, to support his speculation in this regard.
Plaintiff underwent a second liver biopsy on November 9, 2011. Dkt. No. 30 at 16; Dkt. No. 102-3 at 4; Dkt. No. 103 at 67; Dkt. No. 106 at 31. That biopsy reflected "[c]irrhosis consistent with hepatitis C Grade 3/4, Stage 4/4." Dkt. No. 103 at 63; Dkt. No. 106 at 31; Dkt. No. 106-3 at 198. After receiving the results of that second biopsy, defendant Parmer submitted another written request that plaintiff be provided with anti-viral HCV therapy, which was denied by defendant Koenigsmann on that same day. Dkt. No. 30 at 16-18; Dkt. No. 106 at 31-32; Dkt. No. 106-3 at 180-81. Defendant Koenigsmann explained the basis for his denial in the following notation:
This pt has an ANC below the recommended tx level of 1000, in addition he has a low plt count in the face of stage 4 dz this likely represents early decompensation of his cirrhosis. You indicate he is noncompliant with medical care. I would regard this as too many contraindications to tx and cannot approve tx.Dkt. No. 30 at 18; Dkt. No. 106 at 32; Dkt. No. 106-3 at 181. The following day, defendant Parmer informed plaintiff of defendant Koenigsmann's decision. Dkt. No. 30 at 18.
The record before the court reflects that plaintiff frequently refused medical care throughout his period of incarceration, including during the time in which defendant Parmer was his primary care provider. See, e.g., Dkt. No. 103 at 5-12, 53-54, 75-91.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on or about March 13, 2012, and subsequently filed an amended complaint as a matter of right on April 10, 2012. Dkt. Nos. 1, 5. On September 24, 2012, the court accepted for filing plaintiff's second amended complaint ("SAC"), which is now the operative pleading in the matter. Dkt. Nos. 29, 30. Plaintiff's SAC named eight DOCCS employees as defendants, including Parmer and Koenigsmann, and asserted four causes of action, including (1) failure to protect him from harm, (2) retaliation for filing grievances, (3) conspiracy to retaliate against him, and (4) deliberate medical indifference. See generally Dkt. No. 30.
On October 12, 2012, defendants moved seeking dismissal of plaintiff's SAC in its entirety. Dkt. No. 32. That motion resulted in my issuance of a report, on July 8, 2013, recommending dismissal of all claims set forth in the SAC with the exception of plaintiff's deliberate medical indifference cause of action against defendants Parmer and Koenigsmann. Dkt. No. 55. District Judge Glenn T. Suddaby adopted my report and recommendation in full by decision and order issued on September 20, 2013. Dkt. No. 58.
On September 5, 2014, defendants Parmer and Koenigsmann moved for summary judgment dismissing plaintiff's remaining claim of deliberate medical indifference. Dkt. No. 102. Plaintiff has since responded, on September 23, 2014, in opposition to that application. Dkt. No. 106. Defendants' motion is now fully briefed, and has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material facts and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue, and the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the nonmoving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Plaintiff's Deliberate Medical Indifference Claim
In his SAC , plaintiff alleges that defendant Parmer was deliberately indifferent to his serious medical needs by denying his repeated requests for a liver biopsy and HCV therapy. Dkt. No. 30 at 12-16. Plaintiff further alleges that defendant Koenigsmann improperly rejected a recommendation that plaintiff be provided HCV therapy in March 2012. Id. at 17-18. In their motion, defendants maintain that no reasonable factfinder could conclude that either defendant was deliberately indifferent to plaintiff's serious medical needs, and that, instead, plaintiff's claim merely represents his disagreement with treatment decisions rendered by the two individuals now being sued. Dkt. No. 102-4 at 4-9.
Plaintiff also alleges that defendant Koenigsmann was actively involved in the decision to deny him liver biopsies during that period. See Dkt. No. 30 at 12-16. Defendant Koenigsmann claims that he did not become involved in plaintiff's medical care until 2012, however, and there is nothing in plaintiff's medical records to suggest otherwise. Dkt. No. 102-3 at 2.
1. Legal Standard
The Eighth Amendment prohibits punishment that is "incompatible with 'the evolving standards of decency that mark the progress of a maturing society[,]' or which 'involve the unnecessary and wanton infliction of pain[.]'" Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) and Gregg v. Georgia, 428 U.S. 153, 169-73 (1976) (citations omitted)). While the Eighth Amendment "'does not mandate comfortable prisons,' neither does it permit inhumane ones." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). "These elementary principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration." Estelle, 429 U.S. at 103. Failure to provide inmates with medical care, "[i]n the worst cases, . . . may actually produce physical torture or lingering death, [and] . . . [i]n less serious cases, . . . may result in pain and suffering no one suggests would serve any penological purpose." Id.
A claim alleging that prison officials have violated an inmate's Eighth Amendment rights by neglecting to provide adequate medical care must satisfy both objective and subjective requirements. Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009); Price v. Reilly, 697 F. Supp. 2d 344, 356 (E.D.N.Y. 2010). To satisfy the objective requirement, the Second Circuit has said that
[d]etermining whether a deprivation is an objectively serious deprivation entails two inquiries. The first inquiry is whether the prisoner was actually deprived of adequate medical care. As the Supreme Court has noted, the prison official's duty is only to provide reasonable medical care . . . . Second, the objective test asks whether the inadequacy in medical care is sufficiently serious. This inquiry requires the court to examine how the offending conduct is inadequate and what harm, if any, the inadequacy has caused or will likely cause the prisoner.Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006) (citations omitted).
The second inquiry of the objective test requires a court to look at the seriousness of the inmate's medical condition if the plaintiff alleges a complete failure to provide treatment. Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003). "Factors relevant to the seriousness of a medical condition include whether a reasonable doctor or patient would find it important and worthy of comment, whether the condition significantly affects an individual's daily activities, and whether it causes chronic and substantial pain." Salahuddin, 467 F.3d at 280 (quotation marks and alterations omitted).
If, on the other hand, a plaintiff's complaint alleges that treatment was provided but was inadequate, the second inquiry of the objective test is narrowly confined to that specific alleged inadequacy, rather than focusing upon the seriousness of the prisoner's medical condition. Salahuddin, 467 F.3d at 280. "For example, if the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in that treatment, [the focus of the] inquiry [is] on the challenged delay or interruption in treatment, rather than the prisoner's underlying medical condition alone." Id. (quotations marks omitted).
To satisfy the subjective requirement, a plaintiff must demonstrate that the defendant had "the necessary level of culpability, shown by actions characterized by 'wantonness.'" Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). "In medical-treatment cases . . ., the official's state of mind need not reach the level of knowing and purposeful infliction of harm; it suffices if the plaintiff proves that the official acted with deliberate indifference to inmate health." Salahuddin, 467 F.3d at 280. "Deliberate indifference," in a constitutional sense, "requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result." Id. (citing Farmer, 511 U.S. at 837); see also Leach v. Dufrain, 103 F. Supp. 2d 542, 546 (N.D.N.Y. 2000) (Kahn, J.); Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J., adopting report and recommendation by Homer, M.J.). "Deliberate indifference is a mental state equivalent to subjective recklessness, as the term is used in criminal law." Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 839-40). A plaintiff must also establish that the defendant was "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [he] must also [have] drawn[n] the inference." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
2. Analysis
The fatal flaw in plaintiff's medical indifference claim is that he cannot establish that either defendant Parmer or Koenigsmann disregarded an excessive risk to his health or safety. Plaintiff purports to satisfy the subjective element of his deliberate medical indifference claim in two ways. First, plaintiff contends that both defendants were aware of his condition and did not provide him treatment consistent with the DOCCS HCV Guidelines. As a result, plaintiff alleges, his HCV progressed causing him discomfort. Second, plaintiff argues that both defendants' alleged inadequate treatment was motivated by their intent to retaliate against him for filing grievances against them and other medical staff and DOCCS officers throughout the period of his confinement in DOCCS facilities.
With respect to defendant Parmer, plaintiff contends he did not recommend that plaintiff undergo a repeat liver biopsy or HCV treatment. The record, however, does not support a conclusion that these failures satisfy the subjective element of a deliberate medical indifference claim. According to plaintiff, his alanine aminotransferase ("ALT") level was monitored regularly between 2008 and 2011, during the period when defendant Parmer was plaintiff's primary health care provider. Dkt. No. 30 at 13; Dkt. No. 106 at 27-28. He contends that his ALT level during that time remained "elevated." Id. According to the DOCCS HCV Guidelines, "[a]nti-HCV therapy should be considered" for individuals that satisfy a number of criteria, including "[e]levated ALT." Dkt. No. 106-3 at 95. The record evidence, however, does not reflect that plaintiff satisfied the other sixteen listed criteria for anti-viral therapy. Id. In fact, the record demonstrates that plaintiff did not satisfy at least one of the criteria, which recommends individuals undergoing treatment have an absolute neutrophil count ("ANC") of greater than 1,000 and a platelet count of greater than "50,000/cubic ml." Id. at 96, 181. In addition, one of the criteria for treatment is "[a] highly motivated patient." Id. at 96. The record unequivocally reflects plaintiff's documented history of refusing medical care. See, e.g., Dkt. No. 103 at 4-12, 53-54, 75-91. Accordingly, although plaintiff can demonstrate that he had elevated ALT levels during the period defendant Parmer treated him, he cannot establish that defendant Parmer's failure to recommend anti-viral therapy was necessarily inconsistent with the DOCCS HCV Guidelines.
While plaintiff's medical records support a conclusion that his ALT level remained elevated, the records also suggest that the level remained stable. See, e.g., Dkt. No. 106-3 at 158-160.
Similarly, the DOCCS HCV Guidelines indicate, as plaintiff suggests, that "[a] repeat liver biopsy should be considered every 5 years," but the context in which that recommendation appears does not provide any guidance with respect to whether an individual's primary care provider ignores an excessive risk to a patient's health by considering, but not ordering, a biopsy. The DOCCS HCV Guidelines provided, in pertinent part, as follows:
Patients with HCV serotypes 1 and 4 should receive liver biopsy unless contraindicated. Patients with HCV serotypes 2 or 3 should be encouraged to have a liver biopsy, but may be treated without one. If the liver biopsy shows no inflammation or fibrosis, the patient is not a candidate for treatment with interferon-alfa and ribavirin, but should be followed clinically with liver functions at least yearly. Patients with histologic evidence of advanced cirrhosis should be referred to a hepatologist or gastroenterologist for further evaluation. A repeat liver biopsy should be considered every 5 years. Patients with histologic
evidence of inflammation and fibrosis, but who do not have decompensated cirrhosis[,] should be considered for treatment with interferon and ribavirin.Dkt. No. 106-3 at 95. It is not clear, based on this language, whether the guidelines recommend all inmates diagnosed with HCV undergo repeat liver biopsies every five years, or if the recommendation only applies to those with "histologic evidence of advanced cirrhosis," referred to in the sentence immediately preceding the recommendation. Id.
There is no evidence that plaintiff had any history of "advanced cirrhosis" at the time defendant Parmer allegedly denied plaintiff's requests for a repeat biopsy.
In any event, there is no evidence that, even assuming defendant Parmer's treatment of plaintiff was inconsistent with the DOCCS HCV Guidelines, it created an excessive risk to plaintiff's health. Plaintiff's HCV status was closely and frequently monitored by DOCCS medical staff, as evidenced by plaintiff's medical records submitted by the parties in connection with defendants' motion. He was provided a liver biopsy in 2003 and again in 2009, Dkt. No. 106 at 20, 191; plaintiff repeatedly underwent blood testing and ultrasounds, see, e.g., Dkt. No. 103 at 18-54; and defendant Parmer recommended HCV treatment for plaintiff in September 2011, Dkt. No. 106-3 at 29-30, 193, 195. In light of the close medical supervision plaintiff received for his HCV, no reasonable factfinder could conclude that defendant Parmer deliberately ignored an excessive risk to plaintiff's health or safety while he treated plaintiff during the relevant time period.
Turning now to defendant Koenisgmann, plaintiff contends that the refusal to approve HCV treatment in March 2012 demonstrates deliberate indifference to an excessive risk to his health. In support, plaintiff again asks the court to rely on the recommendations contained in the DOCCS HCV Guidelines, which, as they relate to defendant Koenigsmann, recommend that "[p]atients with histologic evidence of advanced cirrhosis should be referred to a hepatologist or gastroenterologist for further evaluation." Dkt. No. 106-3 at 33, 95. According to plaintiff, because defendant Koenigsmann was aware of this particular recommendation and did not provide plaintiff treatment consistent with it in 2012, a reasonable factfinder could conclude that defendant Koenigsmann's refusal to approve HCV treatment was based on pretext and therefore demonstrates deliberate indifference to an excessive risk to plaintiff's health. Dkt. No. 106-2 at 15-17. I find plaintiff's logic too attenuated in light of the record as a whole.
Defendant Koenigsmann articulated three reasons for not approving HCV treatment for plaintiff in March 2012, including plaintiff's ANC level and platelet count, his belief that plaintiff's condition had advanced to "early decompensated cirrhosis," and plaintiff's history of refusing medical care. Dkt. No. 102-3 at 3; Dkt. No. 106-3 at 181. Defendant Koenigsmann explained that "HCV treatment requires compensated cirrhosis, which means that the body still needs to function fairly well in spite of any scarring of the liver." Dkt. No. 102-3 at 3. Thus, defendant Koenigsmann concluded "too many contraindications" existed in March 2012 to approve HCV treatment. Dkt. No. 106-3 at 181. There is nothing in the record to support plaintiff's allegation that the reasons provided by defendant Koenigsmann were false or pretextual. Although plaintiff argues that in October 2012, another medical provider, Dr. Adams, suggested that some of the factors considered by defendant Koenigsmann could be addressed with "proper hepatitis C therapy," this does not support a conclusion that defendant Koenigsmann rendered his decision in the face of an excessive risk to plaintiff's health. Dkt. No. 106 at 35. Rather, consistent with defendant Koenigsmann's decision, Dr. Adams acknowledged plaintiff's condition represented a high risk for treatment and recommended plaintiff undergo further testing before considering treatment. Id. at 35, 222. In light of all of this evidence, I have determined that no reasonable factfinder could conclude that defendant Koenigsmann's decision to approve HCV treatment for plaintiff was based on deliberate indifference to an excessive risk to plaintiff's health.
Finally, to the extent the grievances referenced by plaintiff in his SAC and affidavit submitted in opposition to the pending motion were intended to support a finding of deliberate indifference, I do not find them persusasive. While it is true that plaintiff adequately set forth evidence demonstrating that he filed grievances regarding his medical care while he was confined in DOCCS facilities, see, e.g., Dkt. No. 106 at 24-26; Dkt. No. 106-3 at 199-217, no reasonable factfinder could conclude, based on the record, that either defendant Parmer or Koenigsmann provided plaintiff inadequate medical treatment in retaliation for his filing of those grievances or that such alleged retaliation provides a legal basis for plaintiff's deliberate medical indifference claim. In support of this contention, plaintiff has set forth only his belief, albeit in a properly sworn affidavit, that the defendants were aware of those grievances and were motivated by them to provide constitutionally inadequate treatment to plaintiff. Plaintiff's bare allegation, however, unsupported by any record evidence, is not sufficient to give rise to a dispute of material fact in this regard. BellSouth Telecomm., Inc. v. W.R. Grace & Co.-Conn., 77 F.3d 603, 615 (2d Cir. 1996).
Because I have concluded that the record does not demonstrate a dispute of material fact with respect to the subjective element of plaintiff's deliberate medical indifference claim, I recommend plaintiff's deliberate medical indifference claim be dismissed with respect to defendants Parmer and Koenigsmann.
I have not considered whether plaintiff can satisfy the objective element of his claim in light of the absence of a genuine dispute of material fact regarding the subjective element.
IV. SUMMARY AND RECOMMENDATION
In his sole remaining claim in this action, plaintiff alleges that defendant William Parmer, a nurse practitioner, and Dr. Carl J. Koenigsmann, a prison physician, were deliberately indifferent to his serious medical needs. Plaintiff's claim stems from defendant Parmer's alleged failure to recommend that he undergo a second liver biopsy and HCV therapy, and Dr. Koenigsmann's decision to deny a recommendation that plaintiff undergo treatment for his HCV. The record now before the court, however, reveals that the plaintiff cannot support his medical indifference claim against either defendant. Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 102) be GRANTED and that plaintiff's remaining claims in this action be dismissed.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge
Dated: February 26, 2015
Syracuse, New York