The opinion of the court was delivered by: Hillman, District Judge
This matter has come before the Court on defendants' motions for summary judgment on plaintiff's claims that defendants committed medical malpractice and were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. For the reasons expressed below, defendants' motions will be granted.
Because plaintiff has brought claims pursuant to 42 U.S.C. § 1983 for alleged violations of his constitutional rights, this Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over plaintiffs' state law claims under 28 U.S.C. § 1367.*fn1
On June 29, 2002, plaintiff, Arsell Lewis, Jr., was an inmate at South Woods State Prison when he injured his left heel playing handball. On July 2, 2002, plaintiff was diagnosed by staff physician, defendant Stephen Hoey, D.O., as having a ruptured Achilles tendon. Dr. Hoey recommended urgent orthopedic evaluation and treatment. On that same day, plaintiff was transported to defendant Cumberland Orthopedics, P.A. and evaluated by defendant Gerald S. Packman, M.D. Dr. Packman affirmed that plaintiff was suffering from a ruptured Achilles tendon, and recommended surgery within three weeks.
Plaintiff's surgery did not occur until September 5, 2002, some eight weeks later, when Dr. Mark Pressman at St. Francis Medical Center surgically repaired plaintiff's left Achilles tendon. A cast was placed on plaintiff's foot, and Dr. Pressman's post-surgical discharge instructions directed that plaintiff receive a follow-up at the orthopedic clinic within two weeks to check the cast. On September 6, 2002, Dr. Hoey examined plaintiff in the prison infirmary and discharged him to his cell.
The next day, plaintiff returned to the infirmary complaining of swelling of his foot, and left hip and knee pain. Plaintiff was using crutches, and the nurse recorded in the office notes that an attempt would be made to obtain a wheelchair for plaintiff's use.
On September 26, 2002, plaintiff returned to the infirmary on a sick call and was seen by a nurse who is not a named defendant. Plaintiff stated that he was supposed to have been seen by the orthopedic clinic two weeks after surgery to have his cast removed. Plaintiff denied any pain or distress, but he asked to have the paperwork started for the orthopedic clinic follow-up because he was concerned about the length of time it took to schedule his surgery. A chart note created by defendant Fran Green, RN and dated September 27, 2002 indicates that a visit with the orthopaedic clinic had been scheduled, the appointment scheduler was to call the office to confirm, and that plaintiff was "able to wiggle toes, no swelling prox cast in place." (Pl. Ex. F at J-00064.)
On October 7, 2002, plaintiff was seen by Dr. Packman in the prison's orthopedic clinic. Plaintiff states that he asked to have Dr. Packman remove the cast because he was in pain, but Dr. Packman reports that he did not remove the cast because (1) he did not perform the surgery, (2) he did not know the quality of the repair, and (3) he did not have any discharge paperwork from the operating surgeon, who may have mandated special requirements for post-operative care. Dr. Packman also reports that plaintiff did not make any complaints about his cast, and his examination of the cast revealed that it was not too tight, there were no abrasions or ulcerations around the edge, there was no abnormal smell, the color of plaintiff's toes and legs was normal, there was no abnormal warmth of the skin, and plaintiff could wiggle his toes.
On October 9, 2002, Nurse Green created a chart note summarizing Dr. Packman's consultation report, and indicated that plaintiff was rescheduled for the next orthopedic clinic with the operative doctor, and St. Francis Medical Center would be called to obtain plaintiff's discharge summary.
On October 24, 2002, plaintiff returned to the orthopedic clinic. The medical summary notes that "[u]nfortunately patient was lost to follow-up and did not return until 7 weeks post surgery," as "he was scheduled to be seen approximately 1 1/2 weeks post surgery and then again 6 weeks post surgery." (Pl. Ex. I.) He was evaluated upon admission, and "he was found to have a full-thickness skin slough*fn2 in the region of the Achilles tendon with exposed tendon and sutures." (Id.) He was transferred to St. Francis Medical Center for antibiotics and wound care. On October 28, 2002, plaintiff underwent "an extensive debridement*fn3 of the skin and soft tissue. A portion of the Achilles was debrided but there appeared to be a portion intact." (Id.) Plaintiff was discharged on October 29, 2002.
Following surgery, plaintiff initially required a wheelchair to get around. He underwent physical therapy, and eventually he was able to walk with the assistance of specialized boots and a cane. In February 2003, plaintiff underwent reconstructive skin flap surgery. He currently wears specialized boots and must wear a brace on his left ankle when walking. He also reports that he experiences occasional loss of balance when walking and has difficulty standing for prolonged periods of time.
On August 19, 2004, plaintiff filed a pro se complaint against Devon Brown, who was the Commissioner of the New Jersey Department of Corrections, Kathryn McFarland, who was the Administrator of South Woods State Prison, John Doe, Stephen Hoey, Fran Green, and "Dr. Peckman." (See Civ. A. No. 04-3962 (FLW).) In that complaint, plaintiff claimed that these defendants were responsible for the delay in his post-surgical follow-up care, which he claims caused the debridement surgery and his subsequent pain and suffering. Plaintiff did not specify the legal basis for his claims against these defendants, but plaintiff utilized the form provided by the district court for prisoners filing complaints under 42 U.S.C. § 1983.
On October 4, 2004, plaintiff filed what he called a "Continuing of Complaint." That document included medical records and a statement that "Correction Medical Services lost discharge summary report that makes this company and every other parties connected libel obligated for this mishap." (Civ. A. No. 04-3962, Docket No. 2.) On October 18, 2004, the court instructed the Clerk to deem plaintiff's case as withdrawn and close the file. (Civ. A. No. 04-3962, Docket No. 4.) The court entered this order in response to an October 14, 2004 letter from plaintiff, who stated, "I would like to bring to your attention that I Arsell Lewis Jr. is the plaintiff and would like to take the opportunity to dismiss this Complaint under the Civil Rights Act U.S.C. § 1983. I'm sorry for putting the courts through this mishap." (Civ. A. No. 04-3962, Docket No. 3.) On October 25, 2004, however, plaintiff sent another letter, which stated that his voluntary dismissal letter was in reference to another suit he filed against "the public defender," and that his case regarding the Achilles tendon surgery was dismissed in error. (Civ. A. No. 04-3962, Docket No. 5.) He accordingly requested that his case be re-opened. It appears that no action was taken by the court in response to plaintiff's request.
On December 13, 2004, plaintiff re-filed the same form complaint against the same defendants, and indicated that his other case was dismissed "by computer error." (Docket No. 1 at 3.) Following the pro se prisoner complaint screening process, plaintiff's complaint was filed on the docket on March 24, 2005. By May 2005, plaintiff had properly served Devon Brown, Kathryn McFarland, Stephen Hoey, and Fran Green. Brown and McFarland moved to dismiss plaintiff's claims against them, and their motion was granted in August 2005.
In September 2005, plaintiff's motion for the appointment of pro bono counsel was granted.*fn4 On October 12, 2007, plaintiff and defendants Dr. Packman and Cumberland Orthopedics agreed to amend the caption to name these defendants in place of "Dr. Peckman" and "John Doe." On June 11, 2008 plaintiff filed an amended complaint, which included Correctional Medical Services ("CMS") as a defendant. Shortly thereafter, CMS filed a motion to dismiss, and the other defendants filed motions for summary judgment. As noted above, those motions were denied without prejudice due to the Court's observation that the amended complaint did not contain any federal claims, and thus, the Court was without subject matter jurisdiction to hear the case. On June 23, 2009, plaintiff subsequently filed a second amended complaint, adding the federal claims that were inadvertently omitted from the amended complaint. All defendants then refiled their motions for summary judgment. The Court resolves those motions now.*fn5
A. Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
Dr. Packman, Cumberland Orthopedics and CMS argue that they are entitled to judgment in their favor because plaintiff's claims were filed out-of-time. Alternatively, these defendants, as well as Nurse Green and Dr. Hoey, argue that they are entitled to judgment in their favor because, as a matter of law, plaintiff cannot prove his medical malpractice claims or deliberate indifference to support his Eighth Amendment claims.*fn6 Plaintiff has opposed defendants' arguments, contending that his claims against Dr. Packman, Cumberland Orthopedics and CMS were not filed beyond the two year statute of limitations period. Plaintiff also argues that ...