United States District Court, D. Vermont
REPORT AND RECOMMENDATION
JOHN M. CONROY, Magistrate Judge.
Plaintiff Lindley Murphy, an inmate confined at Vermont's Northwest State Correctional Facility (NWSCF), brings this action pro se under 42 U.S.C. § 1983, alleging that he has been denied a "proper diet" and "proper medical care." (Doc. 5 at 2-3.) For relief, Murphy seeks an order requiring the Vermont Department of Corrections to provide him with "proper medical care, " as well as damages in the amount of $5, 000, 000. ( Id. at 3.) On June 15, 2015, Defendants filed a Motion for Summary Judgment, arguing that Murphy cannot prove his claims because he has failed to obtain an expert. ( See Doc. 15 at 3.) Murphy has not filed any opposition to the Motion. For the reasons discussed below, I recommend that Defendants' Motion for Summary Judgment (Doc. 15) be DENIED, with leave to renew the Motion consistent with the Court's decision.
Murphy filed his Complaint on June 26, 2014, alleging the following. He has been incarcerated at NWSCF for approximately three years as a pretrial detainee. (Doc. 5 at 5.) Murphy claims that he has had a "severe rash" on his feet "for several months now" and that it is getting worse and spreading. ( Id. ) He alleges that "[m]edical won[']t do anything about it" and that he has not been allowed to see a "qualified medical professional or dermatologist." ( Id. ) He also claims that he is "having trouble walking." ( Id. at 7.)
In addition, Murphy alleges that he has had "an imbalance of acidity" in his stomach for "years." ( Id. at 5.) He asserts that Tums "do nothing" to treat the imbalance, and that he cannot obtain Prilosec or omeprazole. ( Id. at 6.) He says that he "cannot eat half the food they say medical p[re]scribes, " and that he is vomiting, having trouble sleeping, and cannot swallow because his throat is sore from vomiting. ( Id. at 6-7.)
Finally, Murphy alleges that, due to the medical neglect, he is "spiraling down into mental anguish." ( Id. at 5.) He also feels that he is "now suffering post[-]traumatic stress, severe und[ue] emotional distress, and am feeling suicidal." ( Id. at 6.) He says that his "mental anguish over the helplessness" is becoming overwhelming. ( Id. ) Murphy alleges that he has filed "multiple grievances" regarding the above issues, but has received no favorable result, and that he continues to be denied "proper diet and medical care." ( Id. at 2.)
The following undisputed facts relate to Defendants' argument concerning Murphy's failure to obtain an expert. On September 22, 2014, Defendants served Murphy with their Expert Interrogatory and Request to Produce and with Requests for Admissions. (Doc. 10.) The interrogatories required Murphy to identify the physicians or experts who would offer testimony regarding his alleged mistreatment and damages. ( See Doc. 15-3.) The requests for admission requested Murphy to admit that he has not received any opinions from a physician or other expert to support his claims. ( See Doc. 15-4.) Murphy served no responses to the interrogatories or requests for admission.
I. Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate "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 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding whether there is a genuine issue of material fact, "[a]ll reasonable inferences must be construed in the nonmoving party's favor." Hill v. Curcione, 657 F.3d 116, 124 (2d Cir. 2011). Initially the burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once a properly supported motion has been made, the burden shifts to the nonmoving party to set out specific facts showing a genuine issue for trial. Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996). Where, as here, the nonmoving party has failed to submit a response to a summary judgment motion, the court "may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial." Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001).
II. Failure to Obtain an Expert
Defendants assert that Murphy's failure to obtain an expert means he cannot establish a "deliberate indifference" claim under the Eighth Amendment, and that he cannot prevail on any state-law medical-malpractice claim he might be asserting. (Doc. 15 at 3.) I begin by focusing on Murphy's federal claim. Federal law provides a civil claim for damages against "[e]very person who, under color of any statute... of any State... subjects, or causes to be subjected, any citizen... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. "The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161 (1992). "Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999). "To prevail on a § 1983 claim, a plaintiff must establish that a person acting under color of state law deprived him of a federal right." Id.
The federal right at issue here is the Constitution's requirement that prison officials ensure that inmates receive adequate medical care. See Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). More specifically, the Constitution forbids "deliberate indifference to serious medical needs of prisoners.'" Spavone v. N.Y. State Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). "A deliberate indifference claim contains two requirements." Id. "The first requirement is objective: the alleged deprivation of adequate medical care must be "sufficiently serious."'" Id. (quoting Salahuddin, 467 F.3d at 279). "The second requirement is subjective: the charged officials must be subjectively reckless in their denial of medical care." Id. 
Insofar as Murphy has failed to obtain an expert, that is not fatal to his deliberate-indifference claim. As ...