Opinion
9:22-CV-181 (GTS/MJK)
07-24-2024
MARCOS RODRIGUEZ, Plaintiff, v. DR. MIKHAIL GUSMAN, Defendant.
MARCOS RODRIGUEZ, Plaintiff, pro se. MARK G. MITCHELL, Asst. Attorney General, for Defendant ERIN P. MEAD, Asst. Attorney General, for Defendant.
MARCOS RODRIGUEZ, Plaintiff, pro se.
MARK G. MITCHELL, Asst. Attorney General, for Defendant
ERIN P. MEAD, Asst. Attorney General, for Defendant.
REPORT-RECOMMENDATION
MITCHELL J. KATZ, United States Magistrate Judge
TO THE HONORABLE GLENN T. SUDDABY, United States District Court Judge:
In this pro se civil rights action, plaintiff alleges that he was denied constitutionally adequate medical care while he was an inmate in the custody of Eastern Correctional Facility (“Eastern C.F.”). Presently before this court is plaintiff's motion for partial summary judgment as to liability only (Dkt. No. 65), and defendant Dr. Gusman's cross-motion for summary judgment (Dkt. No. 71). Also before the court is plaintiff's motion to compel discovery pursuant to Fed.R.Civ.P. 37(a)(1) (Dkt. No. 70), and motion to defer consideration of defendant's cross- motion for summary judgment (Dkt. No. 84).
This matter has been referred to me for Report and Recommendation by United States District Court Judge Glenn T. Suddaby, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule (“Local Rule”) 72.3(c). For the following reasons, this court recommends that defendant Dr. Gusman's cross-motion for summary judgment be granted, that plaintiff's motion for partial summary judgment be denied, that plaintiff's motion to compel discovery be denied, and that plaintiff's motion to defer consideration of defendant's cross-motion for summary judgment be denied.
DISCUSSION
I. PROCEDURAL HISTORY
Plaintiff commenced this action on February 28, 2022 by filing a complaint. (Dkt. No. 1). On July 7, 2022, plaintiff filed an amended complaint (Dkt. No. 17), which is the operative complaint in this action. On December 16, 2022, defendants filed a motion to dismiss for failure to state a claim. (Dkt. No. 26). United States Magistrate Judge Andrew T. Baxter issued a Report-Recommendation which was accepted and adopted in its entirety by United States District Court Judge Glenn T. Sudabby on May 4, 2023, dismissing plaintiff's section 1983 claims against defendant Dr. Bhavsar with prejudice, and dismissing plaintiff's state law claims without prejudice but without leave to amend. (Dkt. Nos. 39, 40). Defendants' motion to dismiss the amended complaint as against defendant Dr. Gusman was denied. Thus, what remains is plaintiff's cause of action against Dr. Gusman for alleged Eighth Amendment violations.
On November 21, 2023, Judge Baxter issued a text order resetting the discovery deadline to February 22, 2024. (Dkt. No. 54). Local Rule 16.2 provides in relevant part that “[p]arties shall file and serve motions to compel discovery no later than fourteen (14) days after the discovery cut-off.” Plaintiff filed his Motion To Compel Discovery (Dkt. No. 70) on March 22, 2024, twenty-nine days after the discovery deadline.
II. FACTS
A. Defendant's Contentions
Dr. Gusman was employed as a physician at Eastern C.F. from October 1999 until his retirement in June 2021. (Def.'s Stmt. of Mat. Facts ¶ 3) (Dkt. No. 71-1). Dr. Gusman returned to working at Eastern C.F. in September 2021, on a per diem basis. (Id. ¶ 4). Plaintiff was incarcerated at Eastern C.F. from December 2013 to March 2022. (Id. ¶ 11).
On February 25, 2014, plaintiff complained of difficulty urinating and requested a medical call out to be seen by a physician. (Def.'s Stmt. of Mat. Facts ¶ 14; Dkt. No. 73-1 at 337). On March 6, 2014, plaintiff was evaluated by Dr. Bhavsar for “urinary issues,” at which time Dr. Bhavsar observed plaintiff's prostate to be enlarged upon a digital rectal examination (“DRE”). (Def.'s Stmt. of Mat. Facts ¶¶ 15-16; Dkt. No. 73-1 at 334). Dr. Bhavsar thereafter ordered a Prostate Specific Antigen (“PSA”) test for plaintiff. (Def.'s Stmt. of Mat. Facts ¶ 18; Dkt. No. 73-1 at 334). “A PSA test is a blood test used to screen for prostate cancer . . . [and] measures the amount of PSA in the patient's body.” (Gusman Decl. ¶¶ 13-14; Dkt. No. 72-3). The results of plaintiff's test showed that his PSA level was 2.44 ng/ml, which was “within normal range.” (Gusman Decl. ¶¶ 13-14; Dkt. No. 73-1 at 72). According to Dr. Gusman, “[t]he normal range for PSA varies depending on age; the normal range for PSA for men 50-59 years old is a result less than 3.5 ng/ml and less than 4.5 mg/ml for men 60-69 years old.” (Gusman Decl. ¶ 14). Dr. Bhavsar diagnosed plaintiff with Benign Prostatic Hyperplasia (“BPH”), “or an enlarged prostate,” and prescribed Tamsulosin (generic for Flomax) to treat the symptoms associated with this condition. (Def.'s Stmt. of Mat. Facts ¶¶ 24-25; Dkt. No. 73-1 at 334).
All page references are to CM/ECF's pagination system except for the medical records (Dkt. Nos. 73, 73-1, 73-2, 73-3), which are to the bates numbers located on the bottom of each page.
As previously set forth, Dr. Bhavsar was terminated as a defendant from this action pursuant to Judge Suddaby's May 4, 2023 Decision and Order. (Dkt. No. 40).
Plaintiff was fifty years old in March 2014.
Approximately one year later, on February 4, 2015, plaintiff complained of difficulty urinating during a call out, and a PSA test was ordered. (Def.'s Stmt. of Mat. Facts ¶ 29; Dkt. No. 73-1 at 311). At that time, plaintiff reported that the Tamsulosin was helpful, and a new prescription was provided. (Id. ¶ 30; Dkt. No. 73-1 at 311). The PSA test was performed on March 10, 2015 and indicated results within the normal range at 2.71 ng/ml. (Def.'s Stmt. of Mat. Facts ¶ 31; Dkt. No. 73-1 at 90). Thereafter, routine PSA tests were performed to monitor plaintiff's prostate, and Tamsulosin continued to be prescribed for symptoms associated with plaintiff's enlarged prostate. (Def.'s Stmt. of Mat. Facts ¶¶ 32-33).
In 2016, plaintiff was seen for pain in his right testicle and an ultrasound was performed. (Gusman Decl., ¶ 17; Dkt. No. 73 at 224, 237, 248, 250). Plaintiff was diagnosed with hydrocele (swelling caused by fluid). (Id.). Plaintiff also complained of groin pain in 2016 which was diagnosed as a hernia after an ultrasound was performed. (Gusman Decl., ¶ 18; Dkt. No. 73 at 257-258; Dkt. No. 73-3 at 901). On August 29, 2016, plaintiff reported that he was able to urinate without difficulty. (Gusman Decl., ¶ 19; Dkt. No. 73 at 249). Another PSA test was performed on January 10, 2017 and was reported at 2.43 ng/ml, within the normal range. (Gusman Decl., ¶ 21; Dkt. No. 73-1 at 389).
On May 9, 2017, plaintiff was seen by a urologist at Eastern C.F. who ordered a PSA test, the result of which was within the normal range at 2.71 ng/ml. (Gusman Decl., ¶ 21; Dkt. No. 73 at 220; Dkt. No. 73-2 at 654; Dkt. No. 73-3 at 956). Plaintiff was seen again by a urologist in July 2017 for a hernia and continued complaints of right testicular pain. (Gusman Decl., ¶ 22; Dkt. No. 73 at 218; Dkt. No. 73-3 at 955). During the July 2017 exam, plaintiff's prostate was noted to be “benign.” (Id. ¶ 22; Dkt. No. 73 at 218).
On October 17, 2017 and April 12, 2018, plaintiff reported normal urination. (Def.'s Stmt. of Mat. Facts ¶¶ 41-42; Dkt. No. 73 at 195, 209). An additional PSA test performed on November 27, 2018 was within normal range at 2.81 ng/ml (Gusman Decl., ¶ 24; Dkt. No. 73-1 at 401). On March 19, 2019, plaintiff again reported normal urination. (Def.'s Stmt. of Mat. Facts ¶ 45; Dkt. No. 73 at 165). Plaintiff's December 27, 2019 PSA test result was within normal range at 2.02 ng/ml (Gusman Decl., ¶ 25; Dkt. No. 73-1 at 412).
On October 6, 2020, plaintiff was evaluated by Dr. Gusman for complaints of pain in the penis, incontinence, and blood in his urine. (Def.'s Stmt. of Mat. Facts ¶ 49; Dkt. No. 73 at 133). This was the first time Dr. Gusman saw plaintiff for these symptoms, and the first time plaintiff complained of issues with urination since February 2015. (Def.'s Stmt. of Mat. Facts ¶¶ 50-51). Dr. Gusman “performed a [Digital Rectal Exam] and noted two nodes in [plaintiff's] prostate.” (Id. ¶ 52). Dr. Gusman prescribed antibiotics, ordered a PSA test, and referred plaintiff for a urology consultation. (Gusman Decl., ¶ 27; Dkt. No. 73 at 133). Referral requests made by physicians are electronically sent to the facility's Scheduling Unit which obtains the necessary approval and handles the scheduling of the referral upon approval. (Def.'s Stmt. of Mat. Facts ¶ 56). Plaintiff's PSA test result came back on October 21, 2020 within normal range at 2.2 ng/ml. (Gusman Decl., ¶ 30, Dkt. No. 73-1 at 503).
While treating plaintiff for an unrelated medical issue on February 16, 2021, Dr. Gusman noted that plaintiff's urology referral was still pending. (Gusman Decl., ¶ 32; Dkt. No. 73 at 126). On May 21, 2021, plaintiff was seen by urologist Dr. Janis, who performed a Digital Rectal Exam confirming Dr. Gusman's findings. (Def.'s Stmt. of Mat. Facts ¶ 61; Dkt. No. 73-1 at 526). Dr. Janis ordered a PSA test and a biopsy of plaintiff's prostate. (Gusman Decl., ¶ 33; Dkt. No. 73-1 at 526, 533-34). Dr. Gusman “had no control over when the biopsy was performed.” (Def.'s Stmt. of Mat. Facts ¶ 62). Plaintiff's PSA test result was reported on June 10, 2021 at 2.46 ng/ml, within the normal range. (Def.'s Stmt. of Mat. Facts ¶ 63; Dkt. No. 73-1 at 426). Plaintiff's biopsy was performed on August 17, 2021 and he was instructed to follow up in one month for the results. (Def.'s Stmt. of Mat. Facts ¶¶ 64-65).
Plaintiff's biopsy results returned on August 31, 2021, indicating the presence of prostate cancer. (Def.'s Stmt. of Mat. Facts ¶ 66; Dkt. No. 73 at 110; Dkt. No. 73-1 at 518-19). Plaintiff's Gleason score, “a grading system used by pathologists for prostate cancer,” was “6,” which is the lowest grade of prostate cancer and indicates that the cancer is “stage 1 with very low to low risk (group 1), ... slow moving and unlikely to spread, and is treatable ....” (Def.'s Stmt. of Mat. Facts ¶¶ 67-69). Plaintiff had a follow up appointment with Dr. Janis on October 8, 2021 at which time they discussed plaintiff's diagnosis and treatment options. (Id. ¶ 73; Dkt. No. 73 at 104; Dkt. No. 73-1 at 524). In November 2021, plaintiff advised Dr. Gusman that he wanted to proceed with radiation therapy. (Def.'s Stmt. of Mat. Facts ¶ 76; Dkt. No. 73 at 98). Dr. Gusman submitted a referral for plaintiff to see a radiologist on November 16, 2021. (Id.). Plaintiff's radiology consultation took place on December 2, 2021, with radiation therapy beginning on December 21, 2021 and concluding on January 28, 2022. (Def.'s Stmt. of Mat. Facts ¶ 77; Dkt. No. 73 at 70, 79, 96; Dkt. No. 73-1 at 461-64). Plaintiff's treatment was successful, rendering him “cancer-free” upon completion. (Def.'s Stmt. of Mat. Facts ¶ 78; Dkt. No. 73-2 at 645).
B. Plaintiff's Contentions
Plaintiff asserts that his PSA test results reflected in the clinical reports he received on April 7, 2014, March 10, 2015, January 10, 2017, May 26, 2017, July 11, 2017, November 27, 2018, December 27, 2019, October 22, 2020, June 9, 2021 (Pl.'s Stmt. Of Mat. Facts ¶¶ 5, 8, 11, 14, 16, 21, 23, 27, 30) were not within normal range as Dr. Gusman contends. In support of his contention, plaintiff relies on the following language found on his reports:
The PSA assay should not be the only test used for diagnostic purposes. Additional evaluation using DRE, ultrasound, TUR or similar procedures may be used for this purpose. Predictions of disease recurrence should not be based solely upon values obtained from serial PSA values obtained on the patient.(Dkt. 65-1 at 11).
Plaintiff further claims that he had trouble urinating even while taking Tamsulosin, and that he would not be able to do so at all if he did not take it. (Plaintiff Aff., ¶ 6). Plaintiff further claims that he reported instances of pain in various parts of his body from 2017 through 2020. (Plaintiff's Aff. Generally).
III. SUMMARY JUDGMENT
A. Legal Standard
A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The moving party bears the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). A fact is “material” if it “might affect the outcome of the suit under the governing law,” and 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; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). The movant may meet this burden by showing that the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing there is a genuine issue for trial. Salahuddin, 467 F.3d at 273. In that context, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Jeffreys, 426 F.3d at 554 (“The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful.”). “Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998). Statements “that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obligated to “read [the pro se party's] supporting papers liberally, and ... interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, “a pro se party's ‘bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment.” Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).
When considering cross-motions for summary judgment, a court “must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Hotel Employees & Rest. Employees Union, Local 100 of New York, N.Y. & Vicinity v. City of New York Dep't of Parks & Recreation, 311 F.3d 534, 543 (2d Cir. 2002) (quoting Heublein v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993) (internal quotation marks omitted)).
B. Local Rule 56.1
Local Rule 56.1(a) requires a party moving for summary judgment to file and serve a Statement of Material Facts with a specific citation to the record where the fact is established. L.R. 56.1(a). “The record for purposes of the Statement of Material Facts includes the pleadings, depositions, answers to interrogatories, admissions and affidavits.” Id. In turn, Local Rule 56.1(b) mandates that the party opposing a motion for summary judgment “file a separate Response to the Statement of Material Facts. The opposing party's response shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in a short and concise statement, in matching numbered paragraphs.” L.R. 56.1(b). “Each denial shall set forth a specific citation to the record where the factual issue arises.” Id.; see also Lee v. City of Troy, 520 F.Supp.3d 191, 198 (N.D.N.Y. 2021) (“Because a naked denial of a fact the movant claims to be undisputed would do little to help the Court, the opposing party must support every denial with a citation to record evidence supporting a genuine dispute of material fact.”). “The Court may deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.” L.R. 56.1(b) (emphasis omitted).
Here, Dr. Gusman filed and served an 81-paragraph Rule 56.1 Statement of Material Facts. (Dkt. No. 71-1). In opposition, plaintiff filed a Response To Defendant's Statement of Material Facts in which he denied 27 of the 81 assertions in Dr. Gusman's Statement of Material Facts. (Dkt. No. 92 at 10-29). Plaintiff's failure to provide a response in accordance with Local Rule 56.1(b) to the remaining 54 factual assertions in Dr. Gusman's Statement of Material Facts permits this court to deem admitted Dr. Gusman's properly supported facts that plaintiff does not specifically controvert. See L.R. 56.1(b); see also T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009) (citations omitted) (“A nonmoving party's failure to respond to a Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are uncontested and admissible.”).
IV. STATUTE OF LIMITATIONS
A. Legal Standard
“The statute of limitations for claims brought under Section 1983 is governed by state law, and in this case, is the three-year period for personal injury actions under New York State law.” Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009); see also Owens v. Okure, 488 U.S. 235, 250-51 (1989); N.Y.C.P.L.R. § 214(5). Unless the limitations period is tolled for some reason, a plaintiff must file his Section 1983 civil rights action within three years of the accrual of each cause of action.
“Federal law governs the question of when a [Section 1983] claim accrues.” M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 (2d Cir 2003) (quoting Leon v. Murphy, 988 F.2d 303, 309 (2d Cir.1993)). Generally, under federal law, a cause of action accrues when “the plaintiff knows or has reason to know of the injury which is the basis of his action.” Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002) (citations omitted).
Although federal law determines when a Section 1983 claim accrues, state tolling rules determine whether the limitations period has been tolled. See Abbas v. Dixon, 480 F.3d 636, 641 (2d Cir. 1997). A single violation with continuing “consequences” does not extend the accrual of the statute of limitation. See Melendez v. Schneiderman, No.13-CV-622 (GLS/ATB), 2014 WL 2154536, at *12 (N.D.N.Y. May 22, 2014) (citing, inter alia, Doe v. Blake, 809 F.Supp. 1020, 1025 (D. Conn. 1992) (a “continuing violation” which would change the accrual date is occasioned by continuing unlawful acts, not by continued ill effects from the original violation)).
In “rare and exceptional” cases, the doctrine of equitable tolling may apply to defeat an argument that the action was not timely filed. See Abbas, 480 F.3d at 642; see also Veltri v. Bldg. Serv. 32B-J Pension Fund, 393 F.3d 318, 322 (2d Cir. 2004) (“Equitable tolling is an extraordinary measure that applies only when plaintiff is prevented from filing despite exercising that level of diligence which could reasonably be expected in the circumstances.”). “Equitable tolling allows the court to extend the statute of limitations past the time of expiration as necessary to avoid inequitable circumstances.” Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996) (citation omitted). To apply equitable tolling, the court must find that “extraordinary circumstances” prevented the plaintiff from performing the required act, and that plaintiff acted “with reasonable diligence” during the period that he seeks to toll. Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005) (quoting Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004)).
B. Analysis
Plaintiff filed this action on February 28, 2022. (Dkt. No. 1). This court previously ruled that absent equitable or other tolling, any claim which accrued prior to February 23, 2019 is time-barred. (Dkt. No. 39 at 6). In his motion papers, plaintiff appears to concede that “claims of [d]eliberate indifference before February 23rd 2019 are time barred.” (Pl. Mem. Of Law at 7). As set forth below, plaintiff has failed to raise a material question of fact establishing Dr. Gusman's deliberate indifference to his medical care after February 2019, and summary judgment is warranted.
In Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993), modified on other grounds, 25 F.3d 81 (2d Cir. 1994), the Second Circuit discussed the prison-mailbox rule, in which the court deems a pro se prisoner's complaint filed on the date that the prisoner delivered the complaint to prison officials for transmittal to the court.
Even if the allegations preceding February 23, 2019 were subject to tolling and not time-barred, there is no material question of fact as to whether Dr. Gusman was deliberately indifferent prior to February 2019, and plaintiff's amended complaint should still be dismissed in its entirety.
V. DENIAL OF MEDICAL CARE
A. Legal Standard
Claims that prison officials have intentionally disregarded an inmate's serious medical needs fall under the Eighth Amendment umbrella of protection from the imposition of cruel and unusual punishments. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). Prison officials must ensure that inmates receive adequate medical care. Id. (citing Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).
In order to state a claim based on constitutionally inadequate medical treatment, the plaintiff must allege “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). There are two elements to the deliberate indifference standard. See Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003). The first element is objective and measures the severity of the deprivation, while the second element is subjective and ensures that the defendant acted with a sufficiently culpable state of mind. Id. (citing Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996)).
1. Objective Element
To meet the objective requirement, the alleged deprivation of adequate medical care must be “sufficiently serious.” Salahuddin, 467 F.3d at 279 (citing Farmer, 511 U.S. at 834). “Determining whether a deprivation is an objectively sufficiently serious deprivation entails two inquiries.” Id. The first question is whether the plaintiff was actually deprived of adequate medical care. Id. Prison officials who act “reasonably” in response to the inmate's health risk will not be found liable under the Eighth Amendment because the official's duty is only to provide “reasonable care.” Id. (citing Farmer, 511 U.S. at 844-47).
The second part of the objective test asks whether the purported inadequacy in the medical care is “sufficiently serious.” Id. at 280. The court must examine how the care was inadequate and what harm the inadequacy caused or will likely cause the plaintiff. Id. (citing Helling v. McKinney, 509 U.S. 25, 32-33 (1993)). If the “unreasonable care” consists of a failure to provide any treatment, then the court examines whether the inmate's condition itself is “sufficiently serious.” Id. (citing Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003)).
However, in cases where the inadequacy is in the medical treatment that was actually afforded to the inmate, the inquiry is narrower. Id. If the issue is an unreasonable delay or interruption of ongoing treatment, then the “seriousness” inquiry focuses on the challenged delay itself, rather than on the underlying condition alone. Id. (citing Smith, 316 F.3d at 185). The court in Salahuddin made clear that although courts speak of a “serious medical condition” as the basis for a constitutional claim, the seriousness of the condition is only one factor in determining whether the deprivation of adequate medical care is sufficiently serious to establish constitutional liability. Salahuddin, 467 F.3d at 280.
2. Subjective Element
The second element is subjective and asks whether the official acted with “a sufficiently culpable state of mind.” Id. (citing Wilson v. Seiter, 501 U.S. 294, 300, (1991)). To satisfy the second element, a plaintiff must demonstrate more than a “negligent” failure to provide adequate medical care. Id. (citing Farmer, 511 U.S. at 835-37). Instead, a plaintiff must show that the defendant was “deliberately indifferent” to that serious medical condition. Id. Deliberate indifference is equivalent to subjective recklessness. Id. (citing Farmer, 511 U.S. at 839-40).
To rise to the level of deliberate indifference, the defendant must have known of and disregarded an excessive risk to the inmate's health or safety. Id. (citing Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998)). The defendant must “both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Chance, 143 F.3d at 702 (quoting Farmer, 511 U.S. at 837). The defendant must be subjectively aware that his or her conduct creates the risk; however, the defendant may introduce proof that he or she knew the underlying facts, but believed that the risk to which the facts gave rise was “insubstantial or non-existent.” Farmer, 511 U.S. at 844. The court in Salahuddin stated that the defendant's belief that his conduct posed no risk of serious harm “need not be sound so long as it is sincere,” and “even if objectively unreasonable, a defendant's mental state may be nonculpable.” Salahuddin, 467 F.3d at 281.
“The totality of an inmate's medical care must be considered in order to determine whether a prison official has acted with deliberate indifference to serious medical needs.” Wandell v. Koenigsmann, 99-CV-8652, 2000 WL 1036030, *3 (S.D.N.Y. 2000). Prison officials have broad discretion in determining the nature and character of medical treatment afforded to inmates. See Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 311 (S.D.N.Y. 2001) (citations omitted). An inmate does not have the right to treatment of his choice. See Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). Medical decisions will constitute “indifference” only when they are contrary to accepted medical standards. See Harding v. Kuhlmann, 588 F.Supp. 1315, 1316 (S.D.N.Y. July 19, 1984). It is well established that an inmate who disagrees with his physician over the appropriate course of treatment has no claim under §1983 if the treatment provided is adequate. See Chance, 143 F.3d at 703.
Disagreements over medications, diagnostic techniques, forms of treatment, the need for specialists, and the timing of their intervention implicate medical judgments and not the Eighth Amendment. Sonds, 151 F.Supp.2d at 312 (citing Estelle v. Gamble, 429 U.S. 97, 107 (1976)). Even if those medical judgments amount to negligence or malpractice, malpractice does not become a constitutional violation simply because the plaintiff is incarcerated. Id.; see also Daniels v. Williams, 474 U.S. 327 (1986) (noting that negligence is not actionable under Section 1983); Palacio v. Ocasio, No. 02-CV-6726, 2006 WL 2372250, at *11 (S.D.N.Y. Aug. 11, 2006), aff'd, 345 Fed. App'x 668 (2d Cir. 2009) (“It is well settled that the negligent failure to diagnose a serious medical condition does not create a cause of action under 42 U.S.C. § 1983.”). “To succeed in showing deliberate indifference, [the plaintiff] must show that the acts of defendants involved more than lack of due care, but rather involved obduracy and wantonness in placing his health in danger.” LaBounty v. Coughlin, 137 F.3d 68, 72-73 (2d Cir. 1998); see also Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir.2000) (“Mere medical malpractice is not tantamount to deliberate indifference, but it may rise to the level of deliberate indifference when it involves culpable recklessness, i.e., an act or a failure to act ... that evinces a conscious disregard of a substantial risk of serious harm.”) (citations omitted).
B. Analysis
Plaintiff's Eighth Amendment claim against Dr. Gusman is based on the following allegations of deliberate indifference to medical needs: a) ignoring complaints of difficulty urinating; b) improperly prescribing Tamsulosin; c) ignoring plaintiff's allegedly abnormal PSA test; d) failing to “oversee” the care and treatment provided by other physicians; e) delay in having plaintiff examined by a urologist; f) delay in scheduling a biopsy; and g) failing to advise plaintiff of his biopsy results for six weeks. (Dkt. Nos. 17, 65).
All of plaintiff's claims are belied by the record which supports a recommendation that plaintiff's motion for partial summary judgment be denied and that Dr. Gusman's cross-motion for summary judgment be granted.
1. Objective Element
Plaintiff cannot demonstrate that he was actually deprived of adequate medical care or that the purported inadequacy was “sufficiently serious.” Salahuddin, 467 F.3d at 279 . As set forth below, the record establishes that the care provided to plaintiff by Dr. Gusman was reasonable, and, therefore, adequate under the Eighth Amendment.
First, plaintiff's allegations that his complaints of difficulty urinating from 2014 to 2020 were ignored and not properly treated are not factually accurate and are therefore without merit. The medical records establish that after March 2014, plaintiff only complained of difficulty urinating on one other occasion, February 4, 2015, in response to which a PSA test was ordered and a new prescription for Flomax was written. (Gusman Decl., ¶ 16; Dkt. No. 73-1 at 12). In fact, after February 4, 2015, plaintiff reported normal urination on numerous occasions. (Dkt. No. 73 at 166, 196, 210, 250).
It was not until October 6, 2020, more than five and a half years after plaintiff's last complaint, that he again complained of difficulty urinating. (Gusman Decl., ¶ 26). Considering its efficacy, Dr. Gusman continued prescribing Tamsulosin for plaintiff's symptoms. Plaintiff's unsubstantiated lay opinion to the contrary is without merit and is tantamount to nothing more than a disagreement with Dr. Gusman's medical judgment which does not give rise to an Eighth Amendment claim for medical indifference. See Reyes v. Gardener, 93 Fed. App'x 283, 285 (2d Cir. 2004) (“[Plaintiff] has offered no evidence . . . showing that the prescribed medication regimen deviated from reasonable medical practice for the treatment of his condition.”).
Next, plaintiff incorrectly claims that his consistently “abnormal” PSA test results evidenced a sufficiently serious condition for which Dr. Gusman deprived him care. Plaintiff's contention that his PSA levels of 2.44 ng/ml on April 7, 2014 (Dkt. No. 73-1 at 72), 2.71 ng/ml on March 10, 2015 (Dkt. No. 73-1 at 75), 2.43 ng/ml on January 10, 2017 (Dkt. No. 73-1 at 90), 2.71 ng/ml on May 9, 2017 (Dkt. No. 73 at 221), 2.81 ng/ml on November 27, 2018 (Dkt. No. 73-1 at 102), 2.02 ng/ml on December 27, 2019 (Dkt. No. 73-1 at 113) and 2.22 ng/ml on October 22, 2020 (Dkt. No. 73-1 at 204) all support a finding of medical indifference in violation of his Eighth Amendment rights is without merit. However, the repeated PSA screenings, without more, negate plaintiff's contention that he was deprived of adequate medical care, and evidence that his condition was in fact being monitored by his health care providers. Furthermore, plaintiff does not advance any evidence refuting Dr. Gusman's statement that further testing was not medically indicated given plaintiff's PSA results, lack of positive findings upon performing a Digital Rectal Exam, and lack of symptomology. (Gusman Decl. ¶ 67). Plaintiff's unsubstantiated lay opinion that Dr. Gusman should have ordered additional testing or referred him to a urologist sooner based on the PSA results is conclusory and at best, seems to be based upon the benefit of hindsight which is insufficient to implicate the Eighth Amendment “and is not properly the subject of a Section 1983 action.” Groves v. Davis, 11-CV-1317 (GTS/RFT), 2012 WL 651919, at *5 n. 9 (N.D.N.Y. Feb. 28, 2012).
Nor does plaintiff's perceived delay in Dr. Gusman having diagnosed and/or treated his prostate cancer raise any genuine issues of material fact sufficient to defeat defendants' cross-motion for summary judgment. Insofar as there is no medical evidence, notwithstanding regular medical care, in the record suggesting that plaintiff suffered from prostate cancer before October 2020, the court cannot find a corresponding delay in diagnosing and/or treating the same. To the contrary, the record establishes that prior to October 2020, Dr. Gusman adequately treated plaintiff's complaints and chose a course of treatment which, in his professional medical opinion, was supported based on plaintiff's symptomology and presentation. In response to Dr. Gusman's uncontroverted medical opinion (see Gusman Decl., generally) and the evidence contained in the medical records (Dkt. Nos. 73, 73-1, 73-2, 73-3), plaintiff presents no evidence other than his own self-serving and conclusory statements to establish that he had cancer prior to October 6, 2020 and that Dr. Gusman should have prescribed a different course of treatment. See Scott v. Koenigsmann, 12-CV-1551 (MAD), 2016 WL 1057051, at *12 (N.D.N.Y. Mar. 14, 2016) (The record lacked facts supporting plaintiff's contention that her condition was “fast degenerating,” “life threatening”); see also Abreu v. Farley, 11-CV-06251, 2019 WL 1230778 at *12 (W.D.N.Y. Mar. 15, 2019) (plaintiff's contention that he suffered a “sufficiently cardiovascular event” rejected where “plaintiff faile[d] to provide any evidence, medical or otherwise”, . . . “to associate his alleged symptoms with any other cardiovascular health-related issues”).
In any event, plaintiff's assertion that Dr. Gusman should have diagnosed plaintiff's cancer sooner, without more, does not support plaintiff's Section 1983 claim. See Whitfield v. O'Connell, 402 Fed. App'x 563, 566 (2d Cir. 2010) (determining that “even assuming that Whitfield's earlier laboratory reports suggested that he might be suffering from a urinary tract infection, any failure on the part of the Defendants to properly diagnose this condition would not constitute deliberate indifference, but rather, at worst, medical malpractice.”), cert. denied, 563 U.S. 952 (2011); Haynes v. City of New York, 19-CV-1925, 2020 WL 4926178, at *11 (S.D.N.Y. August 20, 2020) (observing that “allegations of negligent misdiagnosis . .. do not suggest that the defendant acted with a conscious disregard to inmate health or safety”).
As to plaintiff's claim based on the purported delay in being seen by a urologist following his October 6, 2020 visit with Dr. Gusman, the record clearly establishes that Dr. Gusman made a referral request for plaintiff to see a urologist that same day. (Gusman Decl. ¶ 71). Dr. Gusman and Nurse DePalo assert that, after having made the referral request, Dr. Gusman was no longer involved in the referral process. (Gusman Decl., ¶ 3); see also Joyner v. Greiner, 195 F.Supp.2d 500, 506 (S.D.N.Y. 2002); see also Burton v. Lynch, 664 F.Supp.2d 349, 359-60 (S.D.N.Y. 2009). Nurse DePalo further stated that seven months for an inmate to wait for an appointment with a urologist during COVID-19 was not unreasonable. (Dkt. No. 72-5, ¶¶ 6, 7).
In opposition to Dr. Gusman's contention that he is not liable for any alleged delay in plaintiff seeing a urologist after the October 6, 2020 examination, plaintiff relies on Loyd v. Lee, 570 F.Supp.2d 556 (S.D.N.Y. August 14, 2008) (motion to dismiss denied where the amended complaint plausibly alleged that doctors knew that plaintiff was experiencing extreme pain and loss of mobility, knew that the course of treatment being prescribed was ineffective and declined to do anything to improve plaintiff's submission beyond re-submitting MRI request forms), Hathaway v. Coughlin, 37 F.3d 63 (2d. Cir. 1994) (court held that a prison doctor could be found to have been deliberately indifferent to a prisoner's serious medical needs because of constant complaints and failure to make a referral to a specialist until after the lawsuit was commenced), Stevens v. Goord, 535 F.Supp.2d. 373 (S.D.N.Y. 2008) (the court concluded that the doctor's decision not to pursue a course of treatment given plaintiff's pain and discomfort for approximately eight months served as a basis for plaintiff's constitutional claim), Price v. Reilly, 697 F.Supp.2d. 344, 362 (E.D.N.Y. March 8, 2010) (a rational jury could find that the defendants acted with deliberate indifference to plaintiff's serious medical needs where there was at least a nine month delay in arranging a kidney transplant test despite plaintiff's repeated requests and defendant's statement that they had “other priorities right now”), Harrison v. Barkley, 219 F.3d 132, 138 (2d Cir. 2000) (court reversed grant of summary judgment, holding that a rational jury could find that the named defendants were deliberately indifferent to plaintiff's serious medical needs where plaintiff's cavity was left untreated for one year in the absence of a court order or plaintiff's consent to the extraction of the non-implicated tooth). Plaintiff's reliance on these cases is misplaced, as the facts in this case are easily distinguishable.
Unlike the plaintiffs in Loyd, Hathaway, Stevens, Price, and Barkley who either complained of continuing pain for a prolonged period of time before receiving further treatment, did not see a specialist despite numerous requests until after an action was commenced, or repeatedly inquired about the status of their medical testing, Dr. Gusman referred plaintiff to a urologist the same day that he had cause to believe that plaintiff needed additional medical care.
Moreover, although plaintiff did seek medical attention between October 6, 2020 and May 21, 2021, while waiting to be seen by the urologist, he did not report a continuation, let alone a worsening, of the symptoms which necessitated plaintiff's October 6, 2020 examination in the first instance. Rather, plaintiff sought medical attention for prescription refills (Dkt. No. 73 at 123, 124, 125, 126, 127, 128, 132, 133), COVID testing (Dkt. No. 73 at 130; Dkt. No. 73-1 at 424, 459), blood work (Dkt. No. 73-1 at 425, 426), back pain (Dkt. No. 73 at 123; Dkt. No. 73-1 at 484), and wrist pain (Dkt. No. 73 at 132; Dkt. No. 73-2 at 737). Only on February 16, 2021 during a sick call to discuss a medication dosing, did plaintiff inquire about the status of his urology referral. (Dkt. No. 73 at 127). The record does not evidence that plaintiff reported any pain or other symptoms related to his prostate condition at any of his encounters with the medical staff during this timeframe. (Dkt. No. 73 at 127). Notably, when plaintiff was finally seen by the urologist and received a diagnosis for prostate cancer, it was noted to be at the lowest risk category, and, as evidenced by the record, treatable. The cancer was diagnosed because of the care provided to plaintiff. Based on these facts, even if there was objectively any avoidable delay between October 6, 2020 and May 21, 2021 (noting the impact of the Covid pandemic), the delay was not “substantially serious,” and plaintiff has not raised a genuine issue satisfying the objective factor. See Motta v. Wright, No. 9:06-CV-1047 (NAM/GJD), 2009 WL 1437589, at *16 (N.D.N.Y. May 20, 2009) (finding alleged three-and-a-half year delay in treatment did not satisfy objective factor of Eighth Amendment analysis where defendants presented evidence that delay was not “substantially serious,” including evidence of the slow progression of the disease and the minimal effect of the delay on plaintiff's condition).
Similarly, the court finds that there was no actionable delay in performing the biopsy ordered by Dr. Janis following plaintiff's May 21, 2021 consultation. The biopsy ordered was performed on August 17, 2021, less than three months after the May 21, 2021 consultation. The record establishes that Dr. Gusman neither ordered the biopsy nor had any control over when it was performed, precluding imposing any liability on him for lack of any personal involvement. Dr. Gusman retired from DOCCS in June 2021, shortly after the May 21, 2021 consultation with Dr. Janis and before the biopsy was performed. (Gusman Decl., at ¶ 1).
Finally, plaintiff's claim that his Eighth Amendment rights were violated because of a perceived delay in communicating his biopsy results to him is not supported by the record. Dr. Gusman was still retired when plaintiff's biopsy results were received on August 31, 2021 by Dr. Loricchioandola at Eastern C.F. and therefore, Dr. Gusman cannot be held liable. (Declaration of Dr. Gusman at ¶¶ 1, 77). Upon receipt of plaintiff's biopsy results, a follow-up appointment was scheduled for plaintiff to see Dr. Janis on October 8, 2021 to discuss the same. In November 2021, plaintiff advised Dr. Gusman, who had returned from retirement in September 2021 on a per diem basis, that he wanted to treat his prostate cancer with radiation (Gusman Decl., at ¶¶ 37-38). Dr. Gusman promptly submitted a referral request for plaintiff to see a radiologist. (Gusman Decl., at ¶¶ 37-38). Plaintiff's radiation therapy began on December 21, 2021 and concluded on January 28, 2022. (Gusman Decl., ¶ 38).
2. Subjective Element
Even if plaintiff were found to have satisfied the objective prong of deliberate indifference, the record does not support a finding that Dr. Gusman acted recklessly with respect to a known risk of harm, or that he “was subjectively aware that his conduct created a substantial risk of harm to the inmate.” Gazzola v. Cnty of Nassau, 16-CV-909, 2022 WL 2274710, *8 (E.D.N.Y. June 23, 2022). Having been diagnosed with an enlarged prostate in March 2014 (Gusman Decl., ¶ 12; Dkt. No. 73-1 at 5), plaintiff's routine PSA test results were recorded on an approximate yearly basis. At all times, plaintiff's PSA test results were within the normal range. Plaintiff was also prescribed Tamsulosin which plaintiff acknowledged alleviated his urination difficulties. (Dkt. No. 73 at 165, 195, 209, 249). He also received digital rectal exams when medically indicated.
Plaintiff's misunderstanding of his laboratory result does not support a finding that Dr. Gusman knew that the course of treatment he provided to plaintiff was ineffective or that Dr. Gusman disregarded “an excessive risk to [plaintiff's] health or safety.” Farmer, 511 U.S. at 827. Plaintiff's lay interpretation of his PSA lab reports was sufficiently explained by Dr. Gusman who, unlike plaintiff, has the requisite training and education to properly interpret such results. (Gusman Decl., ¶ 7).
Nor could a jury conclude on this record that Dr. Gusman's purported failure to ensure that plaintiff was seen for a urology consultation earlier than seven months after his original referral constituted deliberate indifference. As previously discussed, Dr. Gusman continued to treat plaintiff between October 2020 and May 2021, during which time plaintiff failed to complain of any exacerbation of his symptoms. Plaintiff has failed to otherwise advance what substantial risk of serious harm Dr. Gusman purportedly knew of and disregarded while the referral was pending. Absent any indication that Dr. Gusman was reckless in failing to ensure that plaintiff was seen any sooner for his urology consultation, plaintiff's claim cannot survive summary judgment. See Kemp v. Wright, No. 01-CV-562 (JG), 2005 WL 893571, at *6 (E.D.N.Y. Apr. 19, 2005) (“Dr. Halko's failure to follow-up sooner on the referral did not ‘evince[ ] a conscious disregard of a substantial risk of serious harm.' ”) (citing Hernandez, 341 F.3d at 144); Oh v. Saprano, No. 3:20-CV-237, 2020 WL 4339476, at *6 (D. Conn. July 27, 2020) (“Even if RN Tutu should have followed up on [plaintiff's] requests to ensure that [he received his referral], her failure to do so, at most, constituted negligence, which cannot support an Eighth Amendment deliberate indifference claim.”).
The record is clear that Dr. Gusman treated plaintiff and responded to his complaints. The record does not indicate that Dr. Gusman ignored, or left untreated, any complaints of acute pain or symptom exacerbation relative to plaintiff's condition.
Plaintiff received frequent medical care, as his voluminous medical records demonstrate. Based on this record, plaintiff cannot satisfy the state of mind prong of an Eighth Amendment claim, as he cannot show that Dr. Gusman “acted intentionally to impose the alleged condition or recklessly failed to act with reasonable care.” Darnell, 849 F.3d at 35. Even if Dr. Gusman “misdiagnosed” plaintiff, which the court is not suggesting occurred, and that misdiagnosis caused plaintiff unintended harm, or if Dr. Gusman failed to seek out some other course of treatment, such conduct was at most negligent, as the record indicates he had no reason to suspect that plaintiff had prostate cancer prior to October 6, 2020.
The court concludes that there is no genuine dispute of material fact with respect to either the objective or subjective prongs of plaintiff's Eighth Amendment deliberate indifference claim. Accordingly, it is recommended that plaintiff's motion for summary judgment be denied and that Dr. Gusman's cross-motion for summary judgment be granted.
VI. Qualified Immunity
Dr. Gusman contends that if the court were to find that his actions violated plaintiff's Eighth Amendment rights, he is nevertheless shielded from liability by the doctrine of qualified immunity. (Def. Mem. of Law at 23-25). Inasmuch as the court is recommending that Dr. Gusman's cross-motion for summary judgment be granted on other grounds, it finds it unnecessary to reach the qualified immunity argument.
On April 18, 2024, plaintiff filed a Motion to Defer Consideration of Defendant's Cross-Motion for Summary Judgment (Dkt. No. 89) which the court will also treat as motion pursuant to Fed.R.Civ.P. 56(d) even though it is arguably duplicative of plaintiff's motion to compel.
On November 21, 2023, Judge Baxter issued a text order resetting the discovery deadline to February 22, 2024. (Dkt. No. 54). Local Rule 16.2 provides in relevant part that “[p]arties shall file and serve motions to compel discovery no later than fourteen (14) days after the discovery cut-off.” Plaintiff filed his Motion To Compel Discovery (Dkt. No. 70) on March 22, 2024, twenty-nine days after the discovery deadline. Plaintiff's motion is therefore untimely.
Plaintiff's Motion To Compel is perplexing considering the sequence in which it was filed. Plaintiff filed his motion for partial summary judgment on February 1, 2024, approximately seven weeks prior to filing his discovery motion. Having filed a motion for partial summary judgment, logic dictates that plaintiff must have determined that he did not require any additional information to advance his legal and/or factual arguments.
Even if timely filed, plaintiff's Fed.R.Civ.P. 37 motion to compel, which the court will treat as a motion pursuant to Fed.R.Civ.P. 56(d), is nevertheless denied. Under Rule 56(d), “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d). District courts have discretion over discovery rulings, including under Rule 56. See Moccia v. Saul, 820 Fed.Appx. 69, 70 (2d Cir. 2020) (summary order); see also Walden v. Sanitation Salvage Corp., No. 14-CV112, 2015 WL 1433353, at *2 (S.D.N.Y. Mar. 30, 2015) (same). “A party seeking to delay resolution of a summary judgment motion on grounds that he has been deprived of certain discovery materials ‘must show that the material sought is germane to the defense, and that it is neither cumulative nor speculative, and a bare assertion that the evidence supporting a plaintiff's allegations is in the hands of the defendant is insufficient.'” Alphonse Hotel Corp. v. Tran, 828 F.3d 146, 151 (2d Cir. 2016) (quoting Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994)).
Here, plaintiff has made no showing that he has been deprived of any information that is germane to the prosecution of his motion for partial summary judgment or to the defense of Dr. Gusman's cross-motion for summary judgment. Absent from plaintiff's submissions is any plausible explanation as to how the information he seeks is relevant to the alleged deprivation of his constitutional rights and how Dr. Gusman was indifferent to his medical needs. The information plaintiff seeks production of is not material to whether Dr. Gusman knew or should have known that plaintiff was suffering from prostate cancer and/or intentionally failed to treat him, let alone evidence that Dr. Gusman delayed treatment to punish plaintiff, or intentionally ignored a life-threatening condition. Instead, the record shows that as soon as plaintiff presented with symptoms suggestive of prostate cancer on October 6, 2020, he was properly examined, tested, and referred to a urologist for consultation. See Taft v. Fricke, 17-CV-0346 (GTS/CFH), 2019 WL 5197180, at *14 (N.D.N.Y. July 26, 2019) (holding that even if the plaintiff was misdiagnosed and that the misdiagnoses caused the plaintiff unintended harm, and the defendant doctor was negligent, the subjective element is still lacking since the defendant doctor had no reason to suspect that the plaintiff had diabetes).
WHEREFORE, based on the findings above, it is
RECOMMENDED, that plaintiff's motion for summary judgment (Dkt. No. 65) be DENIED IN ITS ENTIRETY, and it is
RECOMMENDED, that defendant's cross-motion for summary judgment (Dkt. No. 71) be GRANTED IN ITS ENTIRETY, and it is
RECOMMENDED, that plaintiff's motion to compel discovery (Dkt. No. 70) and motion to defer consideration of defendant's cross-motion for summary judgment (Dkt. No. 84) be DENIED IN THEIR ENTIRETY, and it is
RECOMMENDED that plaintiff's Amended Complaint (Dkt. No. 17) be DISMISSED IN ITS ENTIRETY WITH PREJUDICE; and it is
ORDERED that the Clerk provide Plaintiff with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).