Parks v. Blanchette (144 F. Supp. 3d 282, 2015)

United States District Court for the District of Connecticut 2015-11-04

Citations

Full opinion text

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND MOTION TO AMEND EXHIBITS

VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE

TABLE OF CONTENTS

Page

I. Defendants’ Motion to Correct the Exhibits.. . .292

II. Defendants’ Motion for Summary Judgment. . .294

A. Background Facts... .294

B. Standard...296

C. Mr. Parks’s Objections to Defendants’ Supporting Evidence.. .296

D. Qualified Immunity... .299

E. Statement of Facts Regarding Deliberate Indifference Claims.... 301

F. Legal Analysis of Deliberate Indifference Claims... .311

G. Statement of Facts Regarding Transfers ...324

H. Legal Analysis of Retaliation Claims... 330

I. Legal Analysis of ADA and Rehabilitation Act Claims... .337

III.Conclusion.. .341

Plaintiff, David Parks, filed a complaint pro se in 2009, challenging various prison conditions he faced while in the custody of the Connecticut Department of Correction (“DOC”). Compl., ECF No. 1; Am. Compl., ECF No. 17. After the Court dismissed a number of claims in an Initial Review Order under 28 U.S.C. § 1915A(b), ECF No. 26, and in a Ruling on a motion to dismiss, ECF No. 96, appointed counsel for Mr. Parks filed a Second Amended Complaint,ECF No. 146, in which he asserts three claims against the three remaining Defendants. The three Defendants are a medical doctor employed by DOC, Dr. Edward Blanchette, and two wardens of facilities in which Mr. Parks was incarcerated from 2004 to 2010, Wardens James Dzurenda and Peter J. Murphy.

Defendants now move for summary judgment, seeking dismissal of all three claims against all Defendants. Defs.’ Mot. For Summ. J., ECF No. 219. In Defendants’ view, the undisputed material facts demonstrate that they are not liable. Defs.’ Br. 2, ECF No. 219-2. Mr. Parks, on the other hand, suggests that this is “the quintessential case” that hinges on questions of fact and credibility, and, therefore, that summary judgment would be inappropriate on any of his claims. Pl.’s Opp. Br. 2, ECF No. 232.

Defendants have also filed a motion to correct one of their summary judgment filings. Defs.’ Mot. to Correct Exhibits, ECF No. 255. The motion asks the Court to accept a certificate of authenticity for medical records accompanying their summary judgment motion, which they inadvertently omitted from the initial filing.

For the reasons that follow, the Court DENIES AS MOOT the Motion to Correct, ECF No. 255, and GRANTS Defendants’ Motion for Summary Judgment, ECF No. 219, in its entirety.

I. Defendants’ Motion to Correct the Exhibits

Defendants’ Motion to Correct seeks to add a certificate of authenticity to some of their summary judgment exhibits, explaining that they inadvertently left this document out when filing their Motion for Summary Judgment. Defs.’ Mot. to Correct, ECF No. 255. Mr. Parks opposes the motion because it is untimely. PL’s Opp. Br. 2-3, ECF No. 257. It is true that Defendants provide no explanation for why they waited one full year after their summary judgment motion was filed to correct the exhibit. However, the Court finds that the medical records which the Motion to Correct seeks to authenticate are still admissible and will consider them in ruling on Defendants’ Summary Judgment Motion. Accordingly, Defendants’ motion is denied as moot.

In ruling on a motion for summary judgment, a court need only consider admissible evidence. Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir.1997); see also Fed. R. Civ. P. 56(c). The medical records provided by Defendants are hearsay but would be admissible under the business records exception to the general exclusion of hearsay, provided they meet the requirements of Federal Rule of Evidence 803(6). Fed. R. Evid. 803(6); see cf. Hodges v. Keane, 886 F.Supp. 352, 356 (S.D.N.Y.1995) (noting that medical records kept by a medical provider in a prison can be admissible as business records if they meet the requirements of Rule 803(6)) (citing Romano v. Howarth, 998 F.2d 101, 108 (2d Cir.1993)); see also Lewis v. Velez, 149 F.R.D. 474, 484 n. 5 (S.D.N.Y.1993) (citations omitted). To be admissible as business records, the documents must have been made near the time of the recorded event by someone with knowledge and must have been kept in the course of regularly conducted business activity. Fed. R. Evid. 803(6)(A)-(B). In addition, it must have been the regular practice of that business activity to make them. Fed. R. Evid. 803(6)(C). Even if “the documents meet all of these requirements, “if the source of information or the method or circumstances of preparation indicate [a] lack of trustworthiness, such records may be excluded.” Hodges, 886 F.Supp. at 356 (citation omitted); Fed. R. Evid. 803(6)(E).

Because “[t]he principles governing admissibility of evidence do not change on a motion for summary judgment,” Defendants must introduce their medical records “in a manner, typically through a custodian’s affidavit, that identifies them and establishes that they are admissible under Federal Rule of Evidence 803(6).” Ravenell v. Avis Budget Grp., Inc., No. 08-cv-2113 (SLT)(SMG), 2014 WL 1330914, at *2 (E.D.N.Y. Mar. 31, 2014) (internal quotation marks and citations omitted). Defendants may do so either by testimony of the custodian or other qualified witness or by certifying the records as self-authenticating in compliance with Federal Rule of Evidence 902(11). Fed. R. Evid. 803(6)(D) (requiring that the conditions of the business records rule be shown “by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12)... ”); see also United States v. Komasa, 767 F.3d 151, 154-55 (2d Cir.2014) (describing the relationship between Rules 803(6) and 902(11)). In their motion, Defendants belatedly seek to do the latter under Rule 902(11). Fed. R. Evid. 902(11).

Mr. Parks argues that, without any foundation for the exhibits’ admissibility, the Court cannot consider Defendants’ medical records. The Court disagrees. Even if the exhibits are not properly authenticated under Rule 803(6)(D), Mr. Parks relied on Defendants’ medical records in opposing Defendants’ summary judgment motion without objecting to their authenticity. See e.g., Pl.’s Opp. Br. 12, 15-16, ECF No. 232 (citing Exhibit 25, which contains Defendants’ medical records); see also e.g., Pl.’s Local Rule 56(a)2 Stmt. ¶224, ECF No. 234 (same). Because Mr. Parks relied on these exhibits, the Court will consider them. See Goris v. Breslin, No. 04-CV-5666 (KAM)(LB), 2010 WL 376626, at *1 n. 1 (E.D.N.Y. Jan. 26, 2010) (admitting medical records that were not properly authenticated under Rule 803(6)(D), because the opposing party relied on them without objecting to their authenticity or admissibility); Atkinson v. Fischer, No. 9:07-CV-00368 (GLS/GHL), 2009 WL 3165544, at *3 n. 1 (N.D.N.Y. Sept. 25, 2009) (Report and Recommendation adopted by the District Court) (same); Sheils v. Flynn, No. 06-CV-0407, 2009 WL 2868215, at *2 n. 2 (N.D.N.Y. Sept. 2, 2009) (Report and Recommendation adopted by the District Court) (same).

Moreover, like Defendants, Mr. Parks also provides no explanation for why his objection to the admissibility of the medical records was not raised until nearly one year after his opposition was filed. In his Opposition Brief to Defendants’ Motion for Summary Judgment, Mr. Parks does make certain objections to Defendants’ exhibits, which are addressed below, but he does not argue that all of the medical records are generally inadmissible or not authentic and has waived those objections at this stage. See Capobianco v. City of New York, 422 F.3d 47, 55 (2d Cir.2005) (finding that, in deciding summary judgment, a district court erred when it refused to consider two reports because the objecting party had waived objections to admissibility by relying on the same reports in support of their motion for summary judgment).

In addition, it is “well-established” that “even inadmissible evidence may properly be considered on summary judgment if it may reasonably be reduced to admissible form at trial.” Bill Salter Advert., Inc. v. City of Brewton, Ala., Civil Action No. 07-0081-WS-B, 2008 WL 183237, at *4 n. 10 (S.D.Ala. Jan. 18, 2008) (rejecting objections made to the late submission of a signature necessary to authenticate a summary judgment exhibit); see also Fed. R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) 324 (1986) (“We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.”); Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir.2003) (“At the summary judgment stage, we do not focus on the admissibility of the evidence’s form. We instead focus on the admissibility of its contents”), cert. denied, 541 U.S. 937, 124 S.Ct. 1663, 158 L.Ed.2d 358 (2004). Defendants easily could authenticate these records at trial using the same certificate they seek to file now. Refusing to consider the Defendants’ exhibits now would strip summary judgment of “[o]ne of its principal purposes... to isolate and dispose of factually unsupported claims or defenses.” Celotex Corp., 477 U.S. at 323-34, 106 S.Ct. 2548.

Because the Court will consider the Defendants’ medical records .without a certificate of authenticity, their request to correct them and add that certificate is DENIED AS MOOT.

II. Defendants’ Motion for Summary Judgment

Defendants seek summary judgment on all three of Mr. Parks’s claims. First, Mr. Parks claims that Dr. Blanchette was deliberately indifferent to his medical needs in denying him treatment for his HIV/ AIDS and Hepatitis C. Am. Compl. ¶¶ 74-76, ECF No. 146. Second, he claims that all three Defendants retaliated against him for filing grievances and otherwise complaining about both the lack of medical treatment he received and the frequency with which he was moved to different cells and different facilities. Id. ¶¶ 77-82. He contends that the retaliatory actions Defendants took against him consisted of frequent transfers, both within and among DOC facilities, further denials of adequate medical treatment for his Hepatitis C condition, and a prohibition on him filing grievances. PL’s Opp. Br. 29, ECF No. 232. Finally, Mr. Parks claims that Defendants Dzurenda and Murphy failed to reasonably accommodate his HIV/AIDS as a disability when they continued moving him from cell to cell frequently, in violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12131 et seq., and the Rehabilitation Act, 29 U.S.C. § 794. Id. ¶¶ 83-86. Mr. Parks makes the third claim against Defendants Dzurenda and Murphy only and in their official capacities, while all other claims are made against all Defendants in their individual capacities. Id. ¶¶ 6-8.

For the reasons that follow, Defendants’ Summary Judgment Motion is GRANTED in its entirety.

A. Background Facts

Mr. Parks was incarcerated in the federal system for “over 20 years” prior to the facts relevant to this lawsuit. Defs.’ Local Rule 56(a)l Stmt. ¶¶ 42-43, ECF No. 219-1. On June 10, 2004, near the end of a federal prison sentence, Mr. Parks was transferred to the custody of the DOC at MacDougall Walker Correctional Institution (“MWCI”), where he served the remainder of his federal sentence. Id.; Ex. 9, Inmate Transfer History 5. Mr. Parks was released on October 6, 2004 but was readmitted into DOC custody nineteen days later, on October 25, 2004, after being arrested for robbing a bank. Defs.’ Local Rule 56(a)l Stmt. ¶¶ 94-95, ECF No. 219-1. Mr. Parks’s claims in this lawsuit are based on events alleged to have occurred while he was awaiting trial and serving his sentence for these charges and the resulting conviction.

Defendant James Dzurenda served as the warden at Garner Correctional Institution (“Garner”) from April 2005 through July 2009, where Mr. Parks was incarcerated at various times from 2006 to 2008. Ex. 7, Dzurenda Aff. ¶ 6; Ex. 9, Inmate Transfer History 4: Defendant Peter J. Murphy served as warden at MWCI from April 2007 until December 2013, where Mr. Parks was also incarcerated at various times from 2004 to 2010. Ex. 17, Murphy Aff. ¶ 4; Ex. 9, Inmate Transfer History 4-5.

Defendant Dr. Edward A. Blanchette treated Mr. Parks, while he was in DOC custody and held three different roles relevant to Mr. Parks’s treatment. First, Dr. Blanchette served as the Director of Clinical and Professional Services Division of Health Services of the DOC from May 1995 to June 2010. Defs.’ Local Rule 56(a)l Stmt. ¶ 7, ECF No. 219-1. In this position, Dr. Blanchette consulted on difficult medical cases and “oversaw the policies and procedures governing medical issues, in-eluding those related to the care and treatment of patients with Hepatitis C and HIV-AIDS.” Id. ¶¶ 9, 12-14. He also served on the University of Connecticut (“UConn”) Medical Center Correctional Managed Health Care Hepatitis C Utilization Review Board (“HepCURB”), the body established to oversee the care of all inmates infected with Hepatitis C. Id. ¶¶ 19-20. Finally, he served on the Doe v. Meachum Monitoring Panel to oversee the care of all HIV patients incarcerated by the DOC. Id. ¶ 17. While working for the DOC, Dr. Blanchette also worked for UConn as an Infectious Disease specialist and ran evening Infectious Disease Clinics for inmates at MWCI and Bridgeport Correctional Center. Id. ¶ 15. It was in all three of these capacities that Dr. Blan-chette became familiar with Mr. Parks, as a patient with HIV/AIDS and Hepatitis C in DOC custody.

In resolving Defendants’ summary judgment motion, the Court first will address objections Mr. Parks raises to Defendants’ evidence offered in support of their motion. It then will address the Defendants’ qualified immunity defense, which is applicable to Mr. Parks’s deliberate indifference and retaliation claims. As a practical matter, because they arise from two relatively distinct sets of facts, the Court will provide a statement of facts with respect to the deliberate indifference claims and apply the law to the facts in this case on those claims. It will then provide a separate statement of facts with respect to the transfers, which pertain to Mr. Parks’s retaliation and ADA and Rehabilitation Act claims and apply the law to those facts.

B.Standard

Courts must “grant 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). The moving party carries the burden of demonstrating that there is no genuine material dispute of fact by citing to “particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A); Carlton v. Mystic Transp., Inc., 202 F.3d 129, 133 (2d Cir.2000). A dispute regarding a material fact is “ ‘genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party’ ” and material if the substantive law governing the case identifies those facts as material. Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir.2006) (quoting Stuart v. Am. Cyanamid Co., 158 F.3d 622, 626 (2d Cir.1998))); Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir.2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

In assessing a summary judgment motion, the Court must resolve all ambiguities, including credibility questions, and draw all inferences from the record as a whole in favor of the non-moving party. Kaytor v. Elec. Boat Corp., 609 F.3d 537, 546 (2d Cir.2010); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991).

C. Mr. Parks’s Objections to Defendants’ Supporting Evidence

Before addressing the merits of the Defendants’ motion, the Court must resolve certain evidentiary disputes. Mr. Parks objects to aspects of the evidence Defendants rely on to support their Motion for Summary Judgment. He argues that, without this evidence, Defendants have not carried their burden, and that summary judgment “should be denied for this reason alone.” Pl.’s Opp. Br. 43-48, ECF No. 232. Mr. Parks makes two objections: (1) that the affidavits supporting the Defendants’ motion are improperly caveated and not based on personal knowledge; and (2) that Dr. Blanchette’s and Dr. Lazrove’s testimony is inappropriately presented as expert testimony in certain portions of the motion and that their affidavits inappropriately incorporate inadmissible hearsay. For the following reasons, the Court finds that none of these claimed deficiencies results in a denial of Defendants’ Motion for Summary Judgment.

1. Affidavits Not Based on Personal Knowledge

Defendants’ affidavits were all sworn either “to the best of [the person’s] knowledge, information, and belief’ or “to the best of [his] knowledge and belief.” See e.g., Ex. 4, Dieckhaus Aff., ECF No. 219-6; Ex. 1, Wu Aff., ECF No. 219-3. Mr. Parks argued in his summary judgment opposition that these phrases did not establish that the affidavits were based on “personal knowledge,” as required by Rule 56(c)(4). Fed. R. Civ. P. 56(c)(4). For the reasons set forth in its May 1, 2015 Order, the Court agreed with Mr. Parks and, under Rule 56(e)(1), ordered Defendants’ to submit revised affidavits based on personal knowledge. Order Regarding Defs.’ Mot. for Summ. J., ECF No. 254.

Defendants submitted these revised affidavits on June 1, 2015. Revised Affs., ECF No. 256. The submissions contain additional affidavits from each witness adopting their earlier affidavits and attesting that the statements within them were based “entirely upon personal knowledge.” See e.g., Lazrove Aff. ¶5, ECF No. 256-4. These additional affidavits were sworn “to the best of my personal knowledge.” See e.g., id.

Mr. Parks argues that these revised affidavits do not suffice because the jurat of the additional affidavit uses “non-committal” language, namely the phrase “to the best of my knowledge.” PL’s Opp. To Defs.’s Mot. to Correct 1 n.l, ECF No. 257. The Court disagrees. The affidavits themselves unequivocally state that the previous affidavits were made “entirely upon personal knowledge.” Moreover, the jurat of the additional affidavit is sufficient to indicate it was made based on personal knowledge for Rule 56 purposes. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995) (finding that a verified complaint sworn “to the best of [plaintiffs] knowledge,” which was construed as an affidavit in the summary judgment context, was sufficient to raise genuine questions of material fact and withstand Defendants’ summary judgment motion). The Court, therefore, cannot deny Defendants’ motion on this basis.

2. Objections to Affidavits Submitted by Dr. Blanchette and Dr. Lazrove

Mr. Parks also objects to portions of Dr. Blanchette and Dr. Lazrove’s affidavits in which, he argues, the two doctors inappropriately testify as experts or rely on hearsay. He contends that they cannot testify as experts because they were not properly disclosed and asks that, as a result, their entire affidavits be stricken under Federal Rule of Civil Procedure 37(c)(1). PL’s Opp. Br. 44, ECF No. 232; PL’s Local Rule 56(a)2 Stmt. ¶¶ 53, 58, 85, 100-03, 105-06, 330-33, 362-63, 396, 399-414, ECF No. 234. Mr. Parks asks the Court to limit the testimony of these doctors to the “four corners” of the notes they took during their sessions with Mr. Parks. PL’s Local Rule 56(a)2 Stmt. ¶ 330, ECF No. 234.

Mr. Parks also objects to portions of Dr. Blanchette and Lazrove’s affidavits that “interpret notes from the medical record or testify as to facts and events of what occurred during medical visits to which they were not witness.” PL’s Opp. Br. 47, ECF No. 232. In his view, these portions of the affidavits are inadmissible hearsay and cannot be considered by this Court as support for the summary judgment motion. Id. While the Court finds some of Mr. Parks’ evidentiary concerns meritorious, as further explained below, excluding these portions of the record does not result in a denial of summary judgment.

a. Expert Testimony from Fact Witnesses

Federal Rule of Civil Procedure 37(c)(1) provides that, “[i]f a party fails to provide information or identify a witness as required by Rules 26(a) or (e) [the former includes expert witnesses], the party is not allowed to use that information or witness to supply evidence on a motion... unless the failure was substantially justified or is harmless.” Unless disclosed as an expert, treating physicians are limited to testifying about what they learned from their “consultation, examination, and treatment of the Plaintiff, ‘not from information acquired from outside sources’ ” Barack v. Am. Honda Motor Co., Inc., 293 F.R.D. 106, 109 (D.Conn.2013) (emphasis in original) (citation omitted); see also Ordon v. Karpie, 223 F.R.D. 33, 36 (D.Conn.2004) (finding that a doctor who planned to testify about “facts beyond the scope of those made known to him in the course of the care and treatment of the patient” must submit an expert report, per Rule 26, to provide that testimony).

However, the Barack case does not indicate that the treating physician cannot testify about opinion at all, only that the opinion he or she testifies about must have been established during his or her treatment of the patient. Barack, 293 F.R.D. at 109. (“[Tjreating physicians ‘cannot be limited to solely factual testimony’ and they ‘may testify as to opinions formed during their treatment.’ ”) (citation omitted). A treating physician’s testimony is also not limited exclusively to the content of his or her notes, but rather to personal knowledge from consultation, examination, and treatment of the plaintiff. Anderson v. Eastern CT Health Network, Inc., No. 3:12-cv-785, 2013 WL 5308269, at *2 (D.Conn. Sept. 20, 2013) (citations omitted). Accordingly, a treating doctor’s testimony may not include any information obtained from outside sources, nor can he opine on any medical reports or opinions received from other doctors. Id.

Mr. Parks has provided no support for why the entire affidavits of Dr. Blanchette and Dr. Lazrove should be struck, as he does not argue that their entire affidavits consist of inappropriate expert testimony. Thus, the Court will analyze the specific portions of the affidavits that Mr. Parks argues contain inappropriate expert testimony and determine whether each of these disposes of the entire summary judgment motion.

In paragraphs 53, 58, and 85 of Defendants’ Local Rule 56(a)l Statement, Defendants cite to Dr. Blanchette’s Affidavit regarding the general nature and use of the drugs Klonopin, Xanax, and Buspar. In paragraphs 400 to 414 of the same document, Defendants also cite to Dr. Lazrove’s Affidavit as support for various conclusions about the nature of anti-social personality disorder. Mr. Parks is correct that this testimony is inappropriate for a treating physician. These general opinions were not obtained through the course of treating Mr. Parks. Accordingly, the Court will not consider them.

In paragraphs 100 to 103 and 105 to 106 of Defendants’ Local Rule 56(a)l Statement, Defendants cite Dr. Blanchette’s Affidavit as support of the allegations that Mr. Parks was prescribed Motrin as well as to make some general statements about the nature of Hepatitis C. Only paragraphs 100 and 102 relate to Dr. Blanchette’s diagnosis and treatment of Mr. Parks, thus the Court can consider them. Paragraphs 101, 103, 105, and 106 are inappropriate expert testimony, because they opine on the general nature of Hepatitis C and its symptoms in an abstract way, rather than with respect to Mr. Parks. Accordingly, the Court will not consider these four paragraphs.

In paragraph 330 of Defendant’s Local Rule 56(a)l Statement, Defendants cite to Dr. Lazrove’s Affidavit to describe his approach to reviewing Mr. Parks’s records. In paragraphs 331 to 333 of the same document, Defendants cite to his affidavit to summarize what he learned from the medical records he reviewed. In paragraph 362, Defendants cite to Dr. Lazgrove’s Affidavit for the statement that, in his view, Mr. Parks was either malingering or dependent on Xanax. In paragraphs 363, 396 and 399 of the same document, Defendants cite to Dr. Lazrove’s Affidavit to explain his conclusion about Mr. Parks’s condition after his observing him. Since all of this testimony is related to Dr. Lazrove’s treatment of Mr. Parks, including his opinion formed while treating Mr. Parks, it is appropriate testimony for a treating physician and will be considered in evaluating the Defendants’ summary judgment motion.

In analyzing Mr. Parks’s objection, the Court has memorialized its analysis only on the objections he explicitly raised in his Local Rule 56(a)2 Statement. The Court, however, appreciates that Drs. Lazrove and Blanchette are not experts and has not considered any of their testimony that is not based on their “consultation, examination, and treatment of the Plaintiff’ in resolving the summary judgment motion. Barack, 293 F.R.D. at 109.

b. Hearsay

Mr. Parks also objects to portions of the Defendants’ Local Rule 56(a)l Statement that, in his view, rely on inadmissible hearsay by citing to either the affidavits of Drs. Blanchette or Lazrove. Pl.’s Opp. Br. 47, ECF No. 232; “Rule 56(e) provides that affidavits in support of and against summary judgment ‘shall set forth such facts as would be admissible in evidence.”’ Raskin, 125 F.3d at 66 (citations omitted and emphasis in original). On summary judgment, a party may “object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). But this provision of the rule simply means that the evidence must be capable of presentation in admissible form at the time of trial. Fed. R. Civ. P. 56(e). It does not require that the materials be presented in an admissible form on summary judgment. See Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548; Fraser, 342 F.3d at 1036.

The only specific objection Mr. Parks raises explicitly on the basis of hearsay is to paragraph 255 of Defendants’ Local Rule 56(a) 1 Statement. In that paragraph, Defendants cite Dr. Blanchette’s Affidavit as evidence that Mr. Parks informed Dr. Hair that he had taken his Seroquel “just once in the past week.” This statement comes from Mr. Parks’s medical records. Ex. 25, Clinical Record Notes dated 7/6/2006, 169 (“ T haven[’]t taken the Seroquel but once in the past week.’ ”) Even if this statement is hearsay, the Court is able to consider it because it could be presented in admissible form at trial by presenting the medical record which contains it. See Fed. R. Evid. 803(6). Accordingly, the Court will consider it;

Otherwise, Mr. Parks has not identified any particular paragraphs of the witness affidavits that he objects to as hearsay. To the extent that the Defendants have provided affidavits from witnesses that quote or summarize the contents of Mr. Parks’s medical records, the Court can and will consider the factual statements they make because they may be presented in admissible form at trial, namely by introducing the medical records and/or by calling the witnesses to testify. In addition, statements made for the purpose of obtaining a medical diagnosis are independently admissible under Federal Rule of Evidence 803(4). To the extent that there are hearsay statements in the Defendants’ witness affidavits that cannot be presented in admissible form at trial, the Court has not considered them.

3. Conclusion

In light of the foregoing, the Court finds that the Defendants’ Motion for Summary Judgment is not so unsupported by admissible evidence that it must be denied outright. The Court will consider the motion but will remain mindful that it cannot rely on inappropriate expert testimony or evidence that cannot be presented in admissible form at trial. Fed. R. Civ. P. 56(e).

D. Qualified Immunity

Defendants argue that they are entitled to qualified immunity for the retaliation and deliberate indifference claims, because the rights at issue were not sufficiently clearly established at the time the Defendants acted. Defs.’ Br. 32, ECF No. 219-2. “A government official performing a discretionary function is entitled to qualified immunity provided his or her ‘conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir.1991) (citation omitted). In determining whether qualified immunity applies, the Court must engage in a “two-part inquiry: [determining 1] whether the facts shown make out a violation of a constitutional right and [2] whether the right at issue was clearly established at the time of the defendant’s alleged misconduct.” Taravella v. Town of Wolcott, 599 F.3d 129, 133 (2d Cir.2010) (citing Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). To be clearly established, “ ‘the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Id. (citation omitted). If a defendant “has an objectively reasonable belief that his actions are lawful, he is entitled to qualified immunity.” Spavone v. New York State Dept. of Corr. Servs., 719 F.3d 127, 135 (2d Cir.2013) (citation omitted).

Mr. Parks argues that an inmate’s rights to be free from retaliatory transfer, retaliatory denial of adequate medical treatment, and retaliatory denial of access to the grievance process, as well as from deliberate indifference to serious medical needs, were well-established at the time the Defendants acted. Pl.’s Opp. Br. 73, ECF No. 232. The Court agrees.

While inmates do not have a liberty interest in remaining at a particular correctional facility, it was well-established before 2006 that prison authorities could not transfer an inmate in retaliation for the exercise of constitutionally protected rights. See Meriwether v. Coughlin, 879 F.2d 1037, 1046 (2d Cir.1989) (noting that prison officials cannot transfer inmates “solely in retaliation for the exercise of constitutional rights”). As more fully discussed below, filing of grievances and lawsuits were also clearly established constitutionally protected activities at the time. See Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir.2004) (the “use of the prison grievance system” is a protected activity); Espinal v. Goord, 558 F.3d 119, 128-29 (2d Cir.2009) (filing a lawsuit is a protected activity). It also was well-established before 2004 that deliberate indifference to an inmate’s serious medical need or denial of adequate medical treatment was not constitutionally permitted. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); see also Wright v. Dee, 54 F.Supp.2d 199, 204 (S.D.N.Y.1999).

Because the Court finds that the rights at issue were well-established at the time they were allegedly violated, it also finds that the question of qualified immunity turns on whether it was objectively reasonable for Defendants to believe that their conduct did not violate Mr. Parks’s rights. This inquiry is the same one the Court must undertake in evaluating Defendants’ summary judgment motion. See Salahud- din v. Goord, 467 F.3d 263, 273 (2d Cir.2006) (noting, in the deliberate indifference context, that the issue of whether there was a constitutional violation for qualified immunity analysis is the same the court undertakes in assessing a summary judgment motion); Johnson v. Ganim, 342 F.3d 105, 117 (2d Cir.2003) (noting that the question of whether the defendant’s actions were objectively reasonable overlapped with the “ultimate question” of whether defendant acted with a retaliatory motive) (citation omitted). Accordingly, qualified immunity is not dispositive of any issue in this case.

E. Statement of Facts Regarding Deliberate Indifference Claims

Mr. Parks contracted the HIV virus and Hepatitis C at some point prior to 1991, when he tested positive for both illnesses. Defs.’ Local Rule 56(a)l Stmt. ¶ 33, ECF No. 219-1; Ex. C, Parks Deck, ¶¶ 4, 8. The HIV virus “affects the immune status of the infected patient” and causes “progressive loss of CD4-positive lymphocytes [] known as T-4 cells or T-helper cells[ ].” Ex. 4, Dieckhaus Aff. ¶¶21-23. These cells are “important mediator[s] of the immune system” and their loss leads to “progressive immune deficiencies.” Id. ¶24. Both sides agree that, if a patient develops a T4/CD4 level of less than 200 and/or is diagnosed with certain types of illnesses, he or she is considered to have AIDS. Id. ¶ 27; see also Ex. B, Edlin Deck ¶¶16, 26. Hepatitis C is a viral disease that causes “inflammation and progressive fibrosis [or scarring] of the liver,” and which can result in “cirrhosis, liver failure, liver cancer, and death.” Ex. B, Edlin Deck ¶37; see also Ex. 1, Wu Aff. ¶8 (noting that Hepatitis C “usually results in slowly progressive liver damage” which in about 30% of cases results in “severe scaring or cirrhosis, and liver failure.”). Mr. Parks sought treatment for both his HIV/AIDS and Hepatitis C while in DOC custody.

1. Medical Treatment for HIV/AIDS by Dr. Blanchette

Mr. Parks first met Dr. Blanchette in June 2004 at the Infectious Disease Clinic at MWCI. Defs.’ Local Rule 56(a)l Stmt.. ¶ 31, ECF No. 219-1. At the time, Mr. Parks was on a Highly Active Antiretrovi-ral Therapy regimen (“HAART”) and was taking the anti-retroviral medications (“ARVs”) Trizivir and Sustiva to treat his HIV/AIDS. Id. ¶¶ 34-35; Ex. C, Parks Deck ¶ 13. These medications forestall replication of the HIV virus for a sustained period of time, if taken regularly. Defs.’ Local Rule 56(a)l Stmt. ¶¶ 495-501, ECF No. 219-1. Other than during a brief period in August 2004 that is not at issue in this case, it is undisputed that Dr. Blanchette continued to prescribe ARV medications for Mr. Parks after this initial meeting and until he was discharged from DOC custody in October 2004. Defs.’ Local Rule 56(a) 1 Stmt. ¶¶ 62, 75, ECF No. 219-1; Pl.’s Local Rule 56(a)2 Stmt. ¶¶ 61, 71, 75, ECF No. 234; Ex. 25, Physician’s Orders dated 9/20/04, 0079 (indicating that ARV medications were among his “discharge” medications).

When Mr. Parks re-entered DOC custody on October 26, 2004, Dr. Blanchette prescribed him the same ARVs h e had been taking earlier in the year. Defs.’ Local Rule 56(a)l Stmt. ¶ 98, ECF No. 219-1. However, on July 12, 2005, Dr. Blanchette discontinued Mr. Parks’s prescriptions for the ARVs. Id. ¶ 137. According to Mr. Parks, Dr. Blanchette told him he would only be stopping his medication for sixty days, with the promise of beginning treatment for Hepatitis C after this sixty-day period. Ex. C, Parks Decl. ¶ 30. Dr. Blan-chette contends he stopped the medication for an indefinite period of time because he believed Mr. Parks did not need it and noted in his July 12, 2005 Clinical Record notes that the patient consistently had “excellent” T4 counts and Viral Load Assays and that he “may do very well off all ARV.” Defs.’ Local Rule 56(a)l Stmt. ¶¶ 127, 129-30, 132-36, 141-42, ECF No. 219-1; Ex. J, Clinical Record Notes dated 7/12/2005, DEF_001282. Dr. Blanchette also believed that Mr. Parks took the pills irregularly, which Mr. Parks disputes. IcL; see e.g., PL’s Local Rule 56(a)(2) Stmt. ¶¶77-78, 127, ECF No. 234. Dr. Blan-chette’s Clinical Record notes indicate that “after a prolonged discussion, the [patient] did finally agree to try stopping all ARVs to see if he maintains reasonable parameters.” Ex. J, Clinical Record Notes dated 7/12/2005, DEF_001282.

Dr. Blanchette met with Mr. Parks on December 1, 2005, January 5, 2006, and April 4, 2006 and did not reinstate his ARV medications at any of these appointments. Defs.’ Local Rule 56(a)l Stmt. ¶¶ 166, 198-206, 217-18, ECF No. 219-1. During this time, Mr. Parks made numerous complaints and requests to have his ARV medication restarted. Ex. C, Parks Decl. ¶¶ 43-44, 51-52, 55-56, 61, 64-73, 76.

Mr. Parks did not begin taking his ARVs again until April 24, 2006, when he met with a different doctor at Garner, Dr. O’Halloran, who re-prescribed them. Defs.’ Local Rule 56(a)l Stmt- ¶¶ 247-50, ECF No. 219-1. In re-prescribing the medication, Dr. O’Halloran’s notes indicate that Mr. Parks’s CD4 count was at “567 [therefore] well above 350 [therefore] did not meet criteria for RX based on current guidelines.” Ex. 25, Clinical Record Notes dated 4/24/2006, 158. Despite this observation, Dr. O’Halloran chose to prescribe Mr. Parks the ARV medication. Id.

During the nearly ten-month period when Mr. Parks was not taking his ARV medication, he suffered “increasing levels of viral replication” and a decrease in his CD4 count. Pl.’s Counterstmt. ¶ 7, ECF No. 234. To understand this statement, the Court must briefly describe the indicators monitored in the blood tests conducted by DOC. In monitoring Mr. Parks’s HIV/ AIDS status, the doctors at the DOC relied on three indicators. First, they relied on the T4 Count, also known as CD4 count, which indicates how many “T-cells” or “T-helper cells” exist in a patient’s body. Defs.’ Local Rule 56(a)l Stmt. ¶¶ 45, 47, ECF No. 219-1. These T-cells are the primary targets of the HIV. Id. ¶ 46. The count indicates how many T4 or CD4 cells are present in a microliter of blood. Id. ¶ 47. Second, the doctors looked at the CD4 percentage, which represents the percentage of the “lymphocyte population that is” positive for T4 or CD4 cells. Id. ¶48. According to a set of HIV/AIDS Guidelines published by the Department of Health and Human Services and submitted by Mr. Parks (the “HIV/AIDS Guidelines”), which both sides agree are applicable, this factor is “usually the most important consideration in decisions to initiate antiretroviral therapy.” Pl.’s Ex. B, Department of Health and Human Services, Guidelines for the Use of Antiretroviral Agents in HPV-l-Infected Adults and Adolescents, dated April 7, 2005 at 4 [hereinafter the “HIV/AIDS Guidelines”]; see also Ex. 4, Dieckhaus Aff. ¶56; Ex. B, Edlin Decl. ¶17. The higher the T4/CD4 count, the stronger the patient’s immune system. Defs.’ Local Rule 56(a)l Stmt. ¶ 50, ECF No. 219-1. Third, the Viral Load Assay “indicates the number of copies of RNA per milliliter of plasma” and represents the “best indicator of the level of HIV-activity in the patient’s body.” Id. ¶¶ 66-67. The higher the Viral Load, the more severe the HIV infection. Id. ¶ 68.

The below chart lists Mr. Parks’s indications on these three metrics over time that were discussed by the parties in their filings, none of which are undisputed.

Date of Test T4 Count CD4 Percentage Viral Load Assay

6/1/2004 Defs.’ Local Rule 56(a)l Stmt. ¶¶ 44, 65. 932 37% None because the blood sample submitted to run the test was “not sufficient.”

6/15/2004 Defs.’ Local Rule 56(a) 1 Stmt. ¶ 110; Ex. J, Infectious Disease Problem Report at DEF 000011. 768 < 400 copies/ml

10/26/2004 Defs.’ Local Rule 56(a) 1 Stmt. ¶ 111; Ex. J, Infectious Disease Problem Report at DEF 000011. < 400 copies/ml

6/14/2005 Defs.’ Local Rule 56(a)l Stmt. ¶ 125; Ex J, Infectious Disease Problem Report at DEF 000011. 779 40.2% 100 copies/ml

7/12/2005 On July 12, 2005, Dr: Blanchette discontinued Mr. Parks’s prescriptions for his ARVs. Defs.’ Local Rule 56(a)! Stmt. ¶ 137,_

9/5/2005 Viral Load and T-Cell Profile scheduled for this date but did not occur until October 20, 2005. Defs.’ Local Rule 56(a)! Stmt. ¶¶ 139-40,

10/20/2005 (conveyed to Mr. Parks on 12/1/2005) Defs.’ Local Rule 56(a)l Stmt. ¶ 170; Ex. J, Infectious Disease Problem Report at DEF 000011. 712 24.5% 15,000 copies/ml

12/5/2005 Viral Load and T-Cell Profile scheduled for this date but did not occur until December 16, 2005. Defs,’ Local Rule 56(a)! Stmt. ¶¶139-40.

12/16/2005 Defs.’ Local Rule 56(a)l Stmt. ¶¶195-96; Ex. J, Infectious Disease Problem Report at DEF 000011. 623 33.9% 22,500 copies/ml

February 2006 Test for Viral Load was scheduled but did not occur until April, when the test for CD4 had been scheduled. Defs.’ Local Rule 56(a)l Stmt. ¶¶185-86,_

4/4/2006 Defs.’ Local Rule 56(a)! Stmt. ¶¶227-28; Ex. J, Infectious Disease Problem Report at DEF_000Ó11; Ex. 25, Daily Report dated 4/4-5/2006 at 0148. 567 28.7% 93,500 copies/ml

4/24/2006 Dr. O’Hall oran begins ARV treatment. Defs.’ Local Rule 56(a)! Stmt. ¶250._

6/12/2006 Ex. J, Infectious Disease Problem Report at DEF 000011. 814 N/A <400 copies/ml

As the chart shows, when Mr. Parks stopped taking his ARVS, his T4/CD4 Count decreased from 779 to a low of 567. His Viral Load Assay also increased during the same period from 100 to a high of 93,500 copies per ml. When he resumed the medication, his Viral Load Assay declined to under 400 copies per ml two months later and stayed under 50 copies per ml for the next several months. Ex. 25, Infectious Disease Problem Report, 56. His T4/CD4 count also rose to 814 after he resumed treatment.

During the time he was not taking his ARVs, Mr. Parks also claims that he experienced a “significant increase” in the risk of opportunistic disease and damage to the immune system that would have been prevented had he continued to receive his HIV/AIDS medications. Pi’s Counterstmt. ¶ 7, ECF No. 234 (citing Ex. B, Dr. Edlin Decl. ¶ 32, ECF No. 233-1). Mr. Parks also contends that the fact that he had both HIV/AIDS and Hepatitis C increased his need for ARV treatment. Id. ¶¶ 5-6. Defendants admits that patients who have a lower CD4 count are at a higher risk for opportunistic illness. Defs.’ Local Rule 56(a)l Stmt. ¶484, ECF No. 219-1; Ex. 4, Dieckhaus Aff. ¶27.

Mr. Parks claims that not taking his ARVs caused him to suffer “physical ailments, including thrush, diarrhea, and night sweats” and has presented evidence from his own recollections and his medical records supporting this contention. Pl.’s Counterstmt. ¶ 8, ECF No. 234; see Ex. C Parks Decl. ¶¶ 45, 51, 55, 65; Ex. J, Clinical Record notes dated 1/18/2006, 1/22/2006, 1/25/2006, DEF_1652-53 (noting Mr. Parks had diarrhea); Ex. D Dieckhaus Dep. 101:7-9, 106:9-11 (noting that Mr. Parks complained of thrush and that a nurse saw two small white patches on December 9, 2005 which Defendants’ expert, Dr. Kevin Dieckhaus, believed could have been thrush); Ex. 25, Clinical Record Notes dated 12/9/05, 113 (noting that Mr. Parks was complaining of thrush and noting the .observance of “2 small white patches” at 8:40 am); Ex. B, Edlin Decl. ¶35 (noting that “Mr. Parks’s medical records document that he suffered physical ailments, including thrush, diarrhea, and night sweats, during the time he was denied his antiretroviral medications.”); Ex. 25, Clinical Record Notes dated 4/3/2006, 149 (noting Mr. Parks complaining about thrush and sores).

Finally, Mr. Parks also claims that the denial of his HIV/AIDS treatment exacerbated his “anxiety and other health issues,” which manifested in physical symptoms “including night sweats, diarrhea and thrush.” Pl.’s Counterstmt. ¶ 19, ECF No. 234; Ex. C, Parks Decl. ¶ 66, 77 (“I was upset that I had been experiencing these symptoms and anxious because I was not on my HIV meds... I was extremely upset and worried that my viral loads had gotten so high.”); see also e.g., Ex. 25, Clinical Record Notes at 102 (anxiety, fear and tension observed on 8/21/2005), at 108 (“agitation” observed on 11/23/2005), at 133 (describing Mr. Parks’s “major focus” on 1/5/2006 was to be placed back on ARVs and noting fears about increasing T4 and Viral Load counts).

2. Mr. Parks’s Treatment for Hepatitis C

The treatment Mr. Parks sought for his Hepatitis C was known as Interferon, which is administered typically over a twelve-month period. Defs.’ Local Rule 56(a)l Stmt. ¶ 232, 288, 305, ECF No. 219-1. To receive this treatment while in DOC custody, Mr. Parks needed to obtain approval of the HepCURB, a committee consisting of three board-certified infectious disease specialists who review and approve the requests of treating doctors for diagnostic work or treatment for inmates infected with Hepatitis C. Ex. Q, UConn and DOC Hepatitis C Management & Treatment, effective 12/10/2002 at 1 [hereinafter “Hepatitis C Guidelines”]; Defs.’ Local Rule 56(a)l Stmt. ¶ 21, ECF No. 219-1.

DOC policy sets out the following sequence of events to guide how treatment of an inmate with Hepatitis C should proceed. Upon testing positive for the Hepatitis C virus, an inmate first must undergo an initial evaluation by his primary care provider, which consists of blood and liver function tests. Ex. Q, Hepatitis C Guidelines 1-2. The policy provides that the primary care provider “shall withhold any referral to the Infectious Disease Specialist (‘IDS’) until court sessions have concluded and the offender has been sentenced” and until two complete blood count and two liver function tests spaced at least 6 months apart “are available and consistent with active liver disease.” Id. at 2. Once a case is referred to an IDS, he should evaluate the individual for potential Hepatitis C treatment, conducting a series of tests to determine the suitability of the treatment, including a mental health assessment. Id. at 2-5. A psychiatrist must conduct the mental health assessment, if the patient is classified as a level 3 in mental health or higher. Id. at 4. “If the results of the mental health assessment do not indicate any increased psychological risk, the IDS may then initiate a referral” to the HepCURB to request treatment. Id. at 4.

In deciding whether an inmate may receive treatment, the HepCURB reviews various forms submitted with each requést, including a mental health screening and any written opinions provided by a psychiatrist. Id. at 5. It is undisputed that the treatment for Hepatitis C Plaintiff sought, Interferon, was known to have neuropsy-chiatric side effects, including “depression, and, in rare cases suicide.” Defs.’ Local Rule 56(a)l Stmt. ¶180, ECF No. 219-1; Ex. B, Edlin Deck ¶48. DOC policy notes that “[i]n general, the HepCURB will follow the specific recommendations of the Center for Disease Control (CDC) and the National Institute of Health (NIH) regarding Hepatitis C management and treatment currently in force at the time of the offender review.” Ex. Q, Hepatitis C Guidelines 1. It also notes that “[t]he Hep-CURB will not generally approve Hepatitis C therapy unless there is a reasonable likelihood that the offender will remain under CDOC supervision for the entire duration of treatment period.” Id. at 6.

Protocol at the time prohibited a patient’s treating physician from participating in a vote on his or her application for treatment. Defs.’ Local Rule 56(a)l Stmt. ¶22, ECF No. 219-1. Dr. Blanchette attended and participated in the discussion that occurred during all of the meetings in which Mr. Parks’s readiness for Hepatitis C treatment was evaluated, as' a sitting member of the HepCURB at the time. See Defs.’ Local Rule 56(a)2 Stmt. ¶¶239-41, ECF No. 219-1; Ph’s Local Rule 56(a)2 Stmt. ¶241, ECF No. 234; see also Ex E, HepCURB Minutes dated 5/10/2006, 4/24/2007, 8/8/2007, 006143-44, 006147-51 (noting that Dr. Blanchette was present at each of these meetings during which a vote on Mr. Parks’s readiness for treatment was taken). But, as will be described further below, Dr. Blanchette denies violating this protocol because he did not vote on Mr. Parks’s readiness for treatment when he was actively treating him; he only voted on Mr. Parks’s readiness for treatment after he had stopped actively treating him. See Defs.’ Local Rule 56(a)2 Stmt. ¶¶239-41, ECF No. 219-1; Ph’s Local Rule 56(a)2 Stmt. ¶241, ECF No. 234. Dr. Blanchette also testified that the HepCURB votes were “almost always” unanimous and that he does not recall an instance where the vote was not unanimous. Ex. E, Blanchette Dep. 198:16-199:9, 211:4-17.

Mr. Parks claims that he first discussed his need for treatment for Heptatitis C during his initial June 2004 meeting with Dr. Blanchette. Ex. C, Parks Deck ¶ 17. Dr. Blanchette’s Clinical Record notes from this visit do not memorialize this request or mention Hepatitis C. Ex. 25, Clinical Record Notes dated 6/21/2004 at 0063. On November 4, 2004, while he was at Bridgeport Correctional Center, Mr. Parks reported that he was in pain from Hepatitis C. Defs.’ Local Rule 56(a)l Stmt. ¶99, ECF No. 219-1. On November 8, 2004, Mr. Parks met with Dr. Blanchette and made a request for Hepatitis C treatment. Id. ¶¶107, 113-16. According to the Clinical Record notes from this visit, Dr. Blanchette explained to Mr. Parks the “Department of Correction protocol regarding Hepatitis C evaluation and treatment,” meaning that he could not be treated until he was sentenced. Id. ¶113; Ex. J, Clinical Record Notes dated 11/8/2004 at DEF_001283. Dr, Blanchette’s notes from this meeting indicate that he understood that Mr. Parks was “held on one half million dollar bond robbery 1st” and that he “probably” had “chronic active hepatitis.” Ex. E, Blanchette Dep. 54:4-59:24; Ex. J, Clinical Record Notes dated 11/8/2004 at DEF_001283. During the November 8, 2004 visit, Dr. Blanchette did not begin the process, as laid out in the DOC policy, of examining Mr. Parks to assess his suitability for Hepatitis C treatment; his notes indicate that he “will wait to see [patient] sentenced, then will submit to UXC for liver [biopsy].” Ex. J, Clinical Record Notes dated 11/8/2004, DEF_001283; Ex. E Blanchette Dep. 59:5-24 (interpreting his November 8, 2004 notes).

On July 12, 2005, Dr. Blanchette reiterated that he would begin Mr. Parks on Hepatitis C treatment as soon as he was sentenced. Defs.’ Local Rule 56(a)l Stmt. 1HI144-45, ECF No. 219-1; Ex. 25, Clinical Record Notes dated 7/12/2005 at 0101. After Mr. Parks began serving his sentence in September 2005, Dr. Blanchette met with Mr. Parks on December 1, 2005 and began the process of evaluating him for Interferon treatment by having him fill out the Initial HCV Functional Status Report and referring him for a Mental Status Evaluation. Defs.’ Local Rule 56(a)l Stmt. ¶¶ 175, 181-84, ECF No. 219-1. Dr. Blan-chette’s notes from this meeting reflect, for the first time, concerns about the impact of Mr. Parks’s mental health on his ability to receive treatment for Hepatitis C. Id. ¶¶176-80, 184; Ex. 25, Clinical Record Notes dated 12/1/2005 at 0111 (“I am particularly concerned about his mental status while on [ ]interferon as his bipolar disorder with depression + anxiety is not always well-controlled.”). Despite the content of the notes, Mr. Parks has denied that Dr. Blanchette mentioned any concern about mental health at this meeting. PL’s Local Rule 56(a)2 Stmt. ¶172, ECF No. 234.

On January 5, 2006, Dr. Blanchette met with Mr. Parks and reiterated that “his tenuous mental health status, especially] his volatility, may be an issue.” Ex. 25, Clinical Record Notes dated 1/5/2006,' at 133; Defs.’ Local Rule 56(a) 1 Stmt. ¶¶198-99, 207-208 ECF No. 219-1; Ex. 25, Initial Evaluation of Hepatitis C Infection dated 1/5/2006, 0130-31 (noting under “significant medical or psychological problems” that Mr. Parks had “severe antisocial personality D/O,” “schizo-affective D/O,” and “bipolar D/O”). Consistent with this observation, the psychiatrist, Dr. Lewis, met with Mr. Parks on February 22, 2006 and March 29, 2006 and noted that he had “GAJD, paranoia, hypomania, [and] anxiety” but observed that he was “doing well.” Defs.’ Local Rule 56(a)l Stmt. ¶¶ 209-10, 214-216, ECF No. 219-1; Ex. 25, Clinical Record Notes dated 2/22/2006,138.

Dr. Blanchette met with Mr. Parks on April 4, 2006. Defs.’ Local Rule 56(a)l Stmt. ¶217, ECF No. 219-1. The parties dispute the authenticity and, therefore, the admissibility of Dr. Blanchette’s notes from that visit, which Dr. Blanchette claims to have typed into a memorandum. PL’s Local Rule 56(a)2 Stmt. ¶219, ECF No. 234 (disputing the authenticity of Clinical Record Notes dated April 4, 2006, available at Ex. 25 at 0147). On April 6, 2004, Dr. Lewis’s Clinical Record notes indicate that the patient was requesting to be on Interferon but that he was “currently not a candidate for this protocol at this time.” Ex. 25, Clinical Record Notes dated 4/6/2014 at 0149; Defs.’ 56(a) Stmt. ¶¶232-33. Dr. Lewis notes that she was referring Mr. Parks to mental health housing and that once “that condition is stabilized (if it is stabilized) formal assessment for Interferon [] be conducted.” Ex. 25, Clinical Record Notes dated 4/6/2014 at 0149.

On April 10, 2006, Dr. Blanchette submitted his recommendation to the Hep-CURB that Mr. Parks not receive Hepatitis C treatment, which noted that “[b]oth Dr. Blanchette & Dr. Lewis/psychiatrist agree [patient] is extremely poor candidate for HCV Rx.” Ex. E, Treatment Recommendation dated 4/10/2005 at 006083. Consistent with this recommendation, Dr. Blanchette testified in his deposition that he made this decision because he believed Mr. Parks needed to be '“stabilized at Garner” before beginning the Hepatitis C treatment. Ex. E, Blanchette Dep. 138:15-139:22. He also noted that, in making the recommendation, he relied on the conclusion of Dr. Lewis that Mr. Parks’s psychological state indicated he was not ready for treatment. Id. The HepCURB denied Mr. Parks Hepatitis C treatment on May 10, 2006, noting that he had a “psychiatric contraindication” and suggesting that the patient be monitored. Ex. E at 4-5, Treatment Recommendation dated 4/10/2005 at 006084-85; see also Ex. E at 6-7, Minutes from HepCURB dated 5/10/2006, 006143-44 (noting with respect to Mr. Parks “[e]lear-cut psychiatric contraindication to treatment noted after ID & psych eval”).

Dr. Blanchette was a sitting member on the HepCURB when this initial treatment decision was made, but he denies voting on Mr. Parks’s application on May 10, 2006 because he was Mr. Parks’s treating physician at the time. Defs.’ Local Rule 56(a)l Stmt. ¶240, ECF No. 219-1; see also Ex. E, Blanchette Dep. 13:9-14:7. Mr. Parks does not offer any evidence that Dr. Blanchette voted at this particular meeting. Dr. Blan-chette also testified that he was present and participated in the discussion of Mr. Parks that took place at this meeting, even though he did not vote. PL’s Local Rule 56(a)2 Stmt. ¶240, ECF No. 234; Ex. E, Blanchette Dep.l96:10-20.

On April 24, 2006, Mr. Parks met with Dr. O’Halloran, who Mr. Parks claims indicated at the time that he would recommend Mr. Parks for Hepatitis C treatment. Ex. C, Parks Deck ¶¶83-86. After this meeting, Dr. O’Halloran submitted a “Non-Formulary or Restricted Drug Request” dated June 20, 2006 asking that Mr. Parks receive Interferon treatment. Ex. J, Non-Formulary or Restricted Drug Request, DEF_001543. This request was denied on June 26, 2006, because Mr. Parks had been “[t]urned down by Hep Curb.” Id.

Dr. O’Halloran submitted a request for a liver biopsy to the HepCURB on February 27, 2007, to assess Mr. Parks’s readiness for Interferon. Ex. 25, Utilization Review Report dated 4/3/2007, 0189. In April 2007, the HepCURB met again to consider this request for treatment and decided that “[i]n view of discrepancy between prior and current psychiatric eval, and between current psych eval and functional status report,” Mr. Parks should receive a second psychiatric evaluation. Id.; Ex. E, Hep-CURB Minutes dated 4/27/2007 at 006148. On August 3, 2007, the HepCURB noted that the panel was “still concerned about psych issues” and would request an opinion from Dr. Berger. Ex. 25 Utilization Review Report dated 8/3/2007, 0190. The minutes from a meeting on August 8, 2007 memorialize the same concerns. Ex. E at 9, HepCURB Minutes dated 8/8/2007, 006151.

Dr. Berger cleared Mr. Parks for a biopsy on August 23, 2007, and his liver was biopsied on October 17, 2007. Ex. E, Hep-CURB Minutes dated 8/8/2007 at 006151; Defs.’ Local Rule 56(a)l Stmt. ¶ 287, ECF No. 219-1; Ex. 25, Consultation Form dated 10/17/2007, 194. The HepCURB met again on November 29, 2007 and approved Mr. Parks for twelve months of Interferon treatment on December 3, 2007. Ex. 25, Utilization Review Committee dated 11/29/2007, 0195; Ex. E, HepCURB-Min-utes dated 11/29/2007 at 006152-53; Defs.’ Local Rule 56(a)l Stmt. ¶305, ECF No. 219-1. Mr. Parks began his Hepatitis C treatment on April 16, 2008. Defs.’ Local Rule 56(a)l Stmt. ¶ 312, ECF No. 219-1. This treatment failed and was discontinued on August 7, 2008. Id. ¶ 313.

At various times from October 2005 through February 2006 and into 2007, Mr. Parks’s Clinical Record and his own testimony indicates that he experienced pain in the abdomen or tenderness over the liver area. See Ex. J, Clinical Record Notes dated 1/27/2006, DEF_001652; Ex. C, Parks Decl. ¶¶44, 65, 70, 97; see also Ex. B, Edlin Decl. ¶70 (noting that the medical record reflects that Mr. Parks suffered abdominal pain consistent with suffering from Hepatitis C during the time Interferon was not being provided to him). Dr. Blanchette was aware of these complaints. Ex. E, Blanchette Dep. 107:1-14 (noting that he would have had access to documents chronicling Mr. Parks’s complaints of pain).

Mr. Parks also contends that he suffered liver damage and deterioration during the time he was denied treatment, particularly as shown by the biopsy of his liver that occurred in October 2007. See Ex. B, Edlin Deck ¶60 (noting that based on his review of Mr. Parks’s medical records, a biopsy in October 2007 showed “extensive fibrosis” at stage 4/5 out of 6), ¶69 (noting that without proper treatment “[i]t is very likely that Mr. Parks’s liver continued to deteriorate and that he continued to lose normal liver tissue.”). Defendants do not dispute the results of the October biopsy but categorize the fibrosis as “moderate.” Defs.’ Local Rule 56(a)l Stmt. ¶446, ECF No. 219-1. They also do not contest that Mr. Parks was suffering some level of liver damage and, when considering this factor alone and apart from any other health concerns, that he was a candidate for Interferon treatment. Ex.,1, Wu Aff. ¶¶15-16; Ex. E, Blanchette Dep. 246:21-23.

Mr. Parks also claims that the delay in his treatment for Hepatitis C harmed him because it decreased the likelihood of success for the treatment. Pb’s Counterstmt. ¶¶ 13-15, 17, ECF No. 234; see also Ex. B, Edlin Deck ¶¶60-61, 67-69, 74. Both sides agree that the rate at which Hepatitis C progresses is accelerated in patients co-infected with HIV/AIDS and Hepatitis C, “increasing the risk of hepatocellular carcinoma and end-stage liver failure.” Pl.’s Counterstmt. ¶ 10, ECF No. 234; Ex. B, Edlin Decl. ¶¶38, 75; Ex. D, Dieekhaus Dep. 12:5-15 ; Ex. 1, Wu Aff. ¶7. Both sides also agree that a delay in treating Hepatitis C infections is generally ill-advised but disagree about whether the delay negatively impacted Mr. Parks in a “measurable” way. See Ex. 1, Wu Aff: ¶18; Ex. B, Edlin Decl. ¶¶45, 58, 60-61, 67-71.

Mr. Parks also claims that the denial of Hepatitis C treatments exacerbated his “anxiety and other health issues.” PL’s Counterstmt. ¶ 19, ECF No. 234. Mr. Parks notes that his Viral Load rose to 199,000 in December 2007 as a result of the anxiety he felt while he was not receiving Hepatitis C treatment. Pi’s Local Rule 56(a)2 Stmt. ¶307, ECF No. 234; see also Ex J at 5, Infectious Disease Problem Report, DEF_000011.

F. Legal Analysis of Deliberate Indifference Claims

Mr. Parks claims under 42 U.S.C. § 1983 that Dr. Blanchette denied him necessary medical treatment for HIV/ AIDS from July 12, 2005 to April 24, 2006 and for Hepatitis C from September 19, 2005 to April 16, 2008 and was, therefore, deliberately indifferent to Mr. Parks’s medical needs. Section 1983 enables a plaintiff to bring a cause of action for “redress” against any person who, under co