Abdul-Aziz v. Nwachukwu, 042313 FED3, 12-1793

Docket Nº:12-1793
Opinion Judge:PER CURIAM
Party Name:SHAROB ABDUL-AZIZ, Appellant v. IHUOMA NWACHUKWU, Medical Doctor at New Jersey State Prison is being sued in her individual and official capacity; ABU ASHAN, Medical Doctor at New Jersey State Prison is being sued in her individual and official capacity
Judge Panel:Before: RENDELL, FISHER and GARTH, Circuit Judges
Case Date:April 23, 2013
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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SHAROB ABDUL-AZIZ, Appellant

v.

IHUOMA NWACHUKWU, Medical Doctor at New Jersey State Prison is being sued in her individual and official capacity; ABU ASHAN, Medical Doctor at New Jersey State Prison is being sued in her individual and official capacity

No. 12-1793

United States Court of Appeals, Third Circuit

April 23, 2013

NOT PRECEDENTIAL

Submitted Pursuant to Third Circuit LAR 34.1(a) April 22, 2013

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 09-cv-05932) District Judge: Honorable Peter G. Sheridan

Before: RENDELL, FISHER and GARTH, Circuit Judges

OPINION

PER CURIAM

Abdul-Aziz, a New Jersey prisoner proceeding pro se, appeals from the District Courts order dismissing his complaint or, in the alternative, granting summary judgment.

For the reasons that follow, we will vacate that judgment and remand for further proceedings consistent with this opinion.

I.

Abdul-Aziz filed a complaint in November 2009 alleging that two prison doctors (the "defendants") had violated his Eighth Amendment rights. The factual background was set forth by the District Court as follows:

[Abdul-Aziz] states that in 2007, he began having problems urinating. He repeatedly submitted medical slips to see the doctor. Defendant Nwachukwu disregarded his claims of pain, and told him that as long as he could urinate, he shouldnt come back to medical- that he should come back when he "cant go." In November of 2007, that happened, and [Abdul-Aziz] returned to medical. Dr. Nwachukwu attempted to insert a catheter twice, but could not. [Abdul-Aziz] was sent to St. Francis Hospital, where he was scheduled for emergency surgery. [Abdul-Aziz] had a complete blockage of his urethra, a chronic condition.

In July of 2009, [Abdul-Aziz] went to a prison clinic complaining of urinating blood and kidney pain. He was seen by defendant Dr. Ashan, and explained his history. [Abdul-Aziz] repeatedly asked to see the urologist and was repeatedly denied. He says that he suffered in pain.

In August of 2009, [Abdul-Aziz] went to the hospital for unrelated minor surgery, and asked to have his bladder checked, but was told he wasnt there for that reason. He was sent back to the prison. [Abdul-Aziz]s mother called the prison to complain, and on August 11, 2009 [Abdul-Aziz] wrote an inmate remedy complaint.

[Abdul-Aziz]s condition continued to deteriorate, and on August 12, 2009, he was sent to the hospital and to see a urologist. Due to the delay, [Abdul-Aziz] claims he had swollen legs, and surgery was required.

Opinion at 5-6, D. Ct. Docket No. 50.

The defendants moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)1 and for summary judgment under Fed.R.Civ.P. 56. They argued that Abdul-Aziz had not exhausted his claims because although he challenged the adequacy of his medical care through the inmate grievance system, he failed to appeal the denial of his grievance. In response, Abdul-Aziz contended that he had filed an appeal and submitted a copy of what he purported to be his filing. The defendants argued that the appeal he attached had never been filed, as evidenced by his failure to submit a copy of the prisons response. The...

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