The opinion of the court was delivered by: Wigenton, District Judge.
Before the Court is Defendants Dr. John Hochberg ("Hochberg"), Dr. Elmira Kapchits ("Kapchits"), Dr. George Achebe ("Achebe") (collectively "medical Defendants"), and Correctional Medical Services, Inc.‟s ("CMS") (collectively "Defendants") Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6),*fn2 or in the alternative, Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56(c), Plaintiff Craig Szemple‟s ("Plaintiff" or "Szemple") Cross-Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56(c), and Plaintiff‟s Motion to Strike Defendants‟ Counter-Statement of Material Facts for Non-Conformance with L. Civ. R. 56.1 ("Motions"). This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1343 and 1367. Venue is proper in this District pursuant to 28 U.S.C. § 1931. These Motions are decided without oral argument pursuant to Fed. R. Civ. P. 78. For the reasons stated below, this Court grants Defendants‟ Motion for Summary Judgment,*fn3 denies Plaintiff‟s Cross-Motion for Summary Judgment as moot, and denies Plaintiff‟s Motion to Strike Defendants‟ Counter-Statement of Material Facts.
FACTUAL AND PROCEDURAL HISTORY
Szemple has been incarcerated by the New Jersey Department of
Corrections ("NJDOC") since August 26, 1994, and is currently housed
at the Northern State Prison in Newark, New Jersey.*fn4
(Defs.‟ Statement of Facts ¶¶ 1, 3.) In 1996, the NJDOC
entered into a contract with CMS. (Defs.‟ Ex. D, Woodard Dep. 25:1-2.)
Pursuant to the contract, CMS provided medical care to inmates. (Am.
Compl. ¶ 12.) The contract was terminated in March 2008. (Defs.‟ Ex.
D, Woodard Dep. 25:4-8.)
Plaintiff was diagnosed with cervical radiculopathy sometime in 2001. (Pl.‟s Exs. Pa31, 32.) On September 23, 2002, he was evaluated by a neurosurgeon, Dr. Francis Pizzi ("Pizzi"), who recommended that Plaintiff undergo conservative measures of treatment such as physical therapy or see a chiropractor. (Id. at 41.) If those two forms of treatment failed, Pizzi suggested that Szemple "may be a good candidate for cervical epidural injections." (Id.) Additionally, Pizzi acknowledged that he may need to re-evaluate Plaintiff "to discuss a more aggressive approach" if Plaintiff‟s condition persisted. (Id.)
Consequently, Plaintiff was referred for physical therapy in October 2002. (Id. at 42.) In addition, he was prescribed several medications to alleviate the pain. On January 8, 2003, Plaintiff was referred for a cervical epidural steroid injection at the Pain Management Center with Dr. Adam Sackstein ("Sackstein"). (Id. at 60-61.) Szemple was approved for a maximum of three epidural steroid injections. (Id. at 63.) Nonetheless, Plaintiff continued to complain of pain. On February 17, 2004, Szemple was referred for another neurosurgery consult. (Id. at 80.) Pizzi, once again, recommended that Plaintiff be given cervical epidural steroid injections and undergo an MRI. (Id. at 81.) However, he noted that Plaintiff "may be a good candidate for" fusion surgery if the recommended treatments were ineffective. (Id.) On May 10, 2004, Plaintiff underwent an MRI. (Id. at 84.)
On February 28, 2005, Plaintiff saw Achebe, New Jersey State Prison‟s then medical director. During that visit, Plaintiff complained of pain in his right elbow and left knee. (Id. at 99.) Achebe referred Plaintiff for an orthopedics consult and prescribed him Mobic, Duragesic patch, and Zetia. (Id. at 100.)
Pizzi reevaluated Plaintiff on October 28, 2005, after he was transferred to East Jersey State Prison and noted that Szemple had "cervical epidural steroid injections with some improvement." (Id. at 112.) Pizzi suggested that Szemple undergo another series of epidural steroid injections. (Id.) Subsequently, on November 23, 2005, Plaintiff was reevaluated by Sackstein who indicated that Plaintiff‟s pain medication included OxyContin, Duragesic patch, and Vicodin. (Id. at 115-116.)
On January 20, 2006, Plaintiff requested a consultation with Kapchits,
East Jersey State Prison‟s medical director, to discuss Sackstein‟s
additional recommendations made on January 18, 2006.*fn5
(Id. at 119.) Consequently, on January 23, 2006, Kapchits saw
Plaintiff and referred him for another consultation with Sackstein.
(Id. at 120.) Additional epidural steroid injections were ordered for
Plaintiff on February 10, 2006. (Id. at 124.)
On June 21, 2006, Kapchits noted that Sackstein had seen Plaintiff on the same day and that the steroid injections had failed. (Id. at 128.) Kapchits increased Plaintiff‟s Duragesic patch and Vicodin dosages and ordered a neurosurgery consult with Pizzi. (Id.; Defs.‟ Ex. G-12 at 812.) On November 27, 2006, Plaintiff underwent an MRI. (Id. at 135-136.) Kapchits reviewed the results of the MRI and ordered Szemple pain medication. (Pl.‟s Ex. Pa137.) Thereafter, on December 20, 2006, Szemple was referred for pain management consultation. (Id. at 138.) Pursuant to the consultation, Kapchits discontinued Plaintiff‟s Vicodin and prescribed steroid injections and Demerol. (Id. at 139.) Furthermore, Kapchits ordered a flat bed for Szemple. (Id.)
Hochberg, Northern State Prison‟s medical director, saw Plaintiff on July 5, 2007, after he was transferred there. (Id. at 151). Hochberg noted that Plaintiff had multiple orthopedic problems and ordered him a lower bunk with flats. (Id.) Although Hochberg discontinued two of Szemple‟s pain medications, Lidoderm and Demerol, because he had concerns about the dosages, Plaintiff continued using the Duragesic patches. (Id. at 153, 163.) On August 30, 2007, Hochberg noted that Szemple "admits to being in no more pain since coming under my care." (Id. at 163.) Nonetheless, on September 12, 2007, Sackstein reevaluated Plaintiff and concluded that Plaintiff resume his previous regimen of Lidoderm, Demerol, and the Duragesic patch. (Id. at 169.) Moroever, Sackstein recommended that Szemple undergo additional steroid injections. (Id.) Consistent with Sackstein‟s recommendations, Hochberg ordered Lidederm, Demerol and Duragesic patches for Plaintiff on October 10, 2007. (Id. at 172.) Furthermore, Hochberg ordered that Plaintiff be referred for an orthopedic and pain management consultation. (Id. at 173.)
Although Szemple informed Sackstein at the September 12, 2007 consultation that "he had been doing well on the" Lidoderm, Demerol, and Duragesic patch regimen, (id. at 169), he alleges that his pain persisted. Even though his pain persisted, Plaintiff contends that Defendants did not evaluate him for spinal surgery fusion as Pizzi recommended on February 17, 2004.
On October 4, 2007, Szemple, proceeding pro se, filed this action. On May 24, 2010, Plaintiff, with the assistance of counsel, filed an Amended Complaint alleging that Defendants "failed to treat Plaintiff‟s documented medical condition" and that they have only "attempted to manage Plaintiff‟s pain." (Am. Compl. ¶ 32.) According to Szemple, Defendants failed to provide him the necessary treatment because they wanted "to save costs." (Id.) Additionally, Szemple asserts that Defendants failed to maintain accurate medical records. (Id. ¶¶ 34-45.)
Plaintiff asserts that Defendants‟ conduct: (1) is in violation of 42 U.S.C. § 1983 because they failed to provide him adequate medical care and maintain adequate medical records*fn6 (first and third claims); (2) constituted medical malpractice (second claim); and (3) violated the New Jersey Civil Rights Act ("NJCRA"), N.J. Stat. Ann. § 10:6-2 (fourth claim).
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). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48 (1986). A fact is only "material" for purposes of a summary judgment motion if a dispute over that fact "might affect the outcome of the suit under the governing law." Id. at 248. A dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The dispute is not genuine if it merely involves "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party meets its initial burden, the burden then shifts to the non-movant who must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations, speculations, unsupported assertions or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir. 2001). "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 ...