The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.
Plaintiff Manuel Gafanha ("Gafanha"), a former inmate of Northern State Prison ("Northern State"), brought this civil action against defendant John Hochberg asserting violation of his Eighth Amendment rights under 42 U.S.C. § 1983 and of state law. Gafanha alleges that Hochberg, the former medical director of Northern State, denied him medical treatment for an ear problem, resulting in deafness in his right ear. Hochberg now moves for summary judgment (DE 77) on Gafanha‟s § 1983 claim.*fn1 Gafanha did not oppose this motion.
Gafanha, whose confinement in state custody began in May 2004, claims that he suffered a permanent hearing loss in his right ear in 2006 and 2007 while incarcerated at Northern State. He first complained of a problem with his right ear to a doctor at Northern State in September 2006. (Def. Hochberg‟s Statement of Material Facts ("Hochberg SOMF"), D.E. 77-1 at 5 ¶ 14.) Gafanha‟s prison medical records show that, between September 2006 and August 2008, he was treated for ear-related problems by various doctors and nurses during at least 11 sick call visits. (Hochberg SOMF ¶¶ 14-71; Def.‟s Moving Br., D.E. 77 at 30-31.) During the same period, Gafanha also visited several specialists based on referrals, and was prescribed at least 10 different medications. (Moving Br. at 30-31.)
Hochberg‟s name first appears in Gafanha‟s medical records on March 9, 2007, in a notation indicating that he had received results of a stress test performed the previous month and that the results were "normal." (Hochberg SOMF ¶ 31.) Before this date, there is no indication in the records that Hochberg had been treating Gafanha. (Id.) Hochberg‟s name next appears on March 15, 2007 in a medical chart note that "‟inmate needs eval by me.‟" (Id. ¶ 32.) According to the records, Hochberg treated Gafanha four days later, on March 19, when he noted that Gafanha complained of ""tinnitus‟" and had been ""seen by ENT, no pe done according to inmate, audiology exam pending.‟" (Id. ¶ 33.) Hochberg‟s notation thus indicates that at the point he began treating Gafanha, he already had seen an ENT specialist and been scheduled for a follow-up audiology examination. (Id. ¶ 69.) Hochberg prescribed an antihistamine and pain medication, and recommended that Gafanha ""return for follow-up‟" as needed. (Id.)
The prison medical records do not indicate that Hochberg ever personally examined Gafanha again. In his deposition, Gafanha asserted that he was treated by Hochberg on other occasions, but he adduced no evidence to counter his prison medical records indicating that Hochberg "actually saw and provided medical treatment to the Plaintiff on a single occasion: March 19, 2007." (Hochberg SMOF ¶ 64.) Gafanha also stated that he did not know when Hochberg first examined him, but estimated that the examination took place in April or May of 2007 in the doctor‟s office, where Hochberg:
did the medical thing. He did [look] in my ear and did the whole checkup thing.
He says to me you have a problem with your ear. Your ear-the canal is this kind of thing and continue with the antibiotics. . .the problem was not when he examined that first time. . . I didn‟t have a problem with Mr. Hochberg, his diagnosis or anything then. (Tr. of Dep. of Manuel Gafanha, March 26, 2010 ("Gafanha Tr."), D.E.77-6, ex. C at 50:24-51:6, 53:17-20)
Other medical records submitted by Hochberg show that he: (1) received referral requests for Gafanha for follow-up audiology consults on November 14 and December 13 of 2007, and both times Hochberg approved the requests the following day (Hochberg SOMF ¶¶ 44-49); (2) reviewed "test and consult reports" relating to Gafanha in 2007 and 2008, including three times when Hochberg "received, reviewed and then noted in the chart results of various testing," and three times when he "received, reviewed and noted on the chart, reports from [another doctor] regarding audiological consultations" (Id. ¶¶ 51, 55, 61, 65, 66 and 67), and; (3) provided Gafanha "with a medical certification" in December 2008 for community residential release. (Id. ¶ 68.)
Gafanha‟s complaint states that, while at Northern State, he was diagnosed for "wax in my ear, and treated as such" and "later was treated for a[n] ear infection with antibiotics." (Amend. comp., D.E. 5 at 2-3.) Gafanha claims that "defendants. . .told me that this was serious [and] required treatment, and that if they did not treat, I could lose my hearing," but "delayed [and] failed to treat me properly deliberately in an effort to save resources," resulting in permanent hearing loss in his right ear. (Id. at ¶ 11-17) (emphasis added.) *fn3 Regarding Hochberg‟s alleged conduct as related to Gafanha‟s Eighth Amendment claims, Gafanha specifies only that Hochberg "failed to treat me after numerous requests for pain in my ear." (Amend. compl. at 2.)
By order of the Court (D.E. 78), Gafanha filed a written narrative statement of facts (D.E. 78), which include seven attached medical records. (Def.‟s Narrative Statement of Facts, D.E. 78.) However, not one of these records reference Hochberg, and all but one pre-date Gafanha‟s documented examination by Hochberg on March 19, 2007. The single record dated after that examination, a "Referal Form" from April 3, 2007, states that Gafanha "was seen by ENT who recommends audiological consultation," diagnosed with "mild to moderate" hearing loss, and had an "impression of the right ear" made to prepare a hearing aid. (Id. at 12) The April 3 referral form lists the "ordering provider" as Dr. Herbert Smyczek, and the diagnosis is signed by "JD Fishman," who is identified by the parties as another doctor. (Id. at 12; Mov. Br. ¶ 36.) In his deposition, Gafanha, when asked if he had any evidence that "Dr. Hochberg believed that it was likely his treatment was going to cause you harm," replied: "I don‟t know." (Gafanha Tr. at 106:5-10.) The questioning continued:
Do you have any reason to believe that at the time you were prescribed antibiotics for an ear infection, that you did not, in fact, have an ear infection; do you have any evidence that you ...