United States District Court, D. Vermont
REPORT AND RECOMMENDATION (Doc. 22)
JOHN M. CONROY, Magistrate Judge.
Plaintiff Lindley Murphy, an inmate proceeding pro se, brings this action under 42 U.S.C. § 1983, alleging that Defendants denied him a "proper diet" and "proper medical care" in violation of his rights under the Eighth and Fourteenth Amendments. (Doc. 5 at 2-3, 6.) For relief, Murphy seeks: (1) an order that the Vermont Department of Corrections provide him with "proper medical care, " and (2) damages in the amount of $5, 000, 000. ( Id. at 3.)
Murphy filed his Complaint on June 26, 2014, and alleges the following facts therein. (Doc. 5.) For three years, Murphy has been a pretrial detainee incarcerated at the Northwest State Correctional Facility (NWSCF) in Swanton, Vermont. ( Id. at 5.) While incarcerated, he developed "a severe rash on [his] feet, " which progressively worsened. ( Id. ) The medical staff did nothing to care for his condition and refused to let him see "a medical professional or dermatologist." ( Id. ) Murphy has also long suffered from "an imbalance of acidity" in his stomach. ( Id. ) He received no help at NWSCF for this condition and was unable to obtain his desired medication. ( Id. at 5, 6.) Murphy asserts that, "[d]ue to [Defendants'] neglect[, ] [he is] spiraling down into mental anguish" ( id. at 5), is suffering from "posttraumatic stress" and "severe und[ue] emotional distress" ( id. at 6), and is "feeling suicidal" ( id. ). Murphy further asserts that he "cannot eat half the food they say medical prescribes" ( id. ); he is having difficulty walking and sleeping ( id. at 7); and his vomiting results in an inability to swallow ( id. ). NWSCF "has done nothing to fix the[se] issues" ( id. at 3), despite Murphy's claim that he has "filed multiple grievances" ( id. at 2).
On June 15, 2015, Defendants State of Vermont Department of Corrections (DOC), Greg Hale, and NWSCF filed a Motion for Summary Judgment (Doc. 15), arguing that Murphy could not satisfy his burden of showing Defendants' negligence or deliberate indifference to his claimed medical needs, given his failure to provide an expert opinion in support of his claims. ( Id. at 3.) The Court denied Defendants' Motion, concluding that the lack of an expert was not fatal to Murphy's claims. (Doc. 16 at 5-6; see also Doc. 18 (adopting Report and Recommendation).) The Court also denied Defendants' Motion on the grounds that it was "inadequately briefed" ( id. at 6), but reserved judgment on any state law claims ( id. at 7).
Now pending is Defendants' Renewed Motion for Summary Judgment (Doc. 22), filed on December 1, 2015. Therein, Defendants make the following arguments: (1) sovereign immunity bars Murphy's § 1983 claims under the Eleventh Amendment to the United States Constitution ( id. at 8, 10); (2) Murphy has failed to show Defendant Hale's personal involvement in the alleged constitutional violation ( id. at 11-13); (3) Murphy cannot establish Defendants' "deliberate indifference to his claimed serious medical needs" ( id. at 8-9; see also id. at 13-17); and (4) Murphy's potential medical negligence claim fails "because he has not disclosed an expert to offer opinions in support of that claim" ( id. at 9; see also id. at 17-20).
For the reasons set forth below, I recommend that the Court GRANT Defendants' Renewed Motion for Summary Judgment and DISMISS the case.
I. Constitutional Claims
A. Summary Judgment-Legal Standards
Pursuant to Federal Rule of Civil Procedure 56(a), a moving party is entitled to 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). When determining whether there is a genuine issue of material fact, the court is "required to resolve all ambiguities and draw all factual inferences in favor of the' nonmovant." Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (quoting Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, 2 F.3d 157');">182 F.3d 157, 160 (2d Cir. 1999)). "Where the moving party demonstrates the absence of a genuine issue of material fact, the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact." Id. (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)). "To defeat summary judgment... non-moving parties must do more than simply show that there is some metaphysical doubt as to the material facts' and they may not rely on conclusory allegations or unsubstantiated speculation.'" Bermudez v. City of New York, 790 F.3d 368, 373-74 (2d Cir. 2015) (alteration in original) (quoting Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005)).
Because Murphy is proceeding pro se, the Court "must interpret his papers liberally to raise the strongest arguments that they suggest.'" Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). "Even a pro se plaintiff, however, cannot withstand a motion for summary judgment by relying merely on the allegations of a complaint." Saldana v. Local 32B-32J Serv. Emps. Int'l Union, No. 03 Civ.1853 DF, 2005 WL 66895, at *2 (S.D.N.Y. Jan. 12, 2005).
Defendants have provided an extensive record of Murphy's medical care (Docs. 22-3 to 22-96), which largely has been summarized in the affidavit of Dr. Ryan Herrington, a Vermont-licensed physician who treated Murphy during his incarceration (Doc. 22-2). Also, as required by Local Rule 56(e), Defendants submitted a Statement of Undisputed Material Facts (Doc. 22-1), and notified Murphy about the consequences of failing to respond to the Motion (Doc. 22-99). L.R. 56(e). Although Murphy responded to the Motion with his own affidavit (Doc. 25 at 2), he did not submit a Statement of Disputed Material Facts. L.R. 56(b).
Murphy is known among medical staff within the DOC for his "consistent use of the health service request protocol to obtain medical attention." (Doc. 22-2 at 3, ¶ 18.) While incarcerated, Murphy has sought medical care for various conditions, including a "foot rash" (Doc. 22-2 at 2, ¶¶ 4-5; see, e.g., Doc. 22-3 at 1), and stomach acid reflux, or Gastroesophageal Reflux Disease (GERD) (Doc. 22-2 at 1, ¶ 3; 3, ¶ 13; see, e.g., Docs. 22-3, 22-48). Murphy also received mental health counseling and care during his incarceration (Doc. 22-2 at 4, ¶ 20; see, e.g., Doc. 22-49 at 1), and treatment at the Vermont Psychiatric Care Hospital from January 26 to April 22, 2015 (Doc. 22-2 at 4, ¶ 19; see, e.g., Docs. 22-77 to 22-79). The facts relating to each of Murphy's conditions and subsequent treatments are presented below.
i. Foot Rash
While imprisoned at NWSCF, Murphy developed a foot rash that was later "diagnosed as a fungal infection, " or athlete's foot. (Doc. 22-2 at 2, ¶ 5.) Murphy submitted many requests to receive medical attention for the foot rash ( see, e.g., Docs. 22-3 to 22-7), and the medical staff responded promptly to Murphy's requests (Doc. 22-2 at 2, ¶ 40), typically within one or two days ( see, e.g., Docs. 22-3, 22-5, 22-6, 22-7 (one day); Doc. 22-4 (two days)). The staff also instructed Murphy "on how to care for his feet" (Doc. 22-2 at 2, ¶ 6; see also Doc. 22-4), and they prescribed tolnaflate 1% cream (Doc. 22-6), which along with proper foot care, is standard treatment for athlete's foot (Doc. 22-2 at 2, ¶¶ 6, 7).
On June 13, 2014,  Dr. Herrington examined Murphy and determined that his foot rash had been resolved. (Doc. 22-2 at 2, ¶ 8.) Therefore, he discontinued the tolnaflate prescription. ( Id. ) After the filing of this lawsuit, Dr. Herrington again examined Murphy on August 29, 2014. ( Id. ¶ 10.) The doctor noted some "evidence of... athlete's foot, " but Murphy did not indicate that the rash was bothering him. ( Id. ¶¶ 10, 11.)
In 2015, Murphy continued to request medical attention for his foot rash. ( See, e.g., Docs. 22-17, 22-22, 22-23.) Staff members again responded in a prompt manner ( see, e.g., Doc. 22-17 (response in one day)), instructed Murphy on proper foot care ( see, e.g., Doc. 22-23 ("keep clean [and] dry"); Doc. 22-24 (same)), and monitored his medication use (Doc. 22-26 ("has been using tolnaflate cream as ordered"). On September 3, 2015, Murphy told Dr. Herrington that the foot rash was "essentially resolved, " and Dr. Herrington observed ...