Barnes v. Uzu

Decision Date15 March 2022
Docket Number20-CV-5885 (KMK)
PartiesSERGIO BARNES, Plaintiff, v. DR. EDWIN UZU, et al., Defendants.
CourtU.S. District Court — Southern District of New York


DR. EDWIN UZU, et al., Defendants.

No. 20-CV-5885 (KMK)

United States District Court, S.D. New York

March 15, 2022


Sergio Barnes

Pro Se Plaintiff

Brendan M. Horan, Esq.

New York State Office of the Attorney General

Counsel for Defendants



Sergio Barnes (“Plaintiff”), proceeding pro se, brings this Action pursuant to 42 U.S.C. § 1983 and state law against Defendants Dr. Edwin Uzu (“Dr. Uzu”), Dr. Robert Bentivegna s/h/a Ventimegna (“Dr. Bentivegna”), Deputy Commissioner Dr. Carl Koenigsmann s/h/a Koenigsman (“Dr. Koenigsmann”), Nurse Aileen McCarthy (“Nurse McCarthy”), Nurse Administrator Leslie Carey (“NA Carey”), and Dr. Abdul Akhand s/h/a Ahmad Akhan (“Dr. Akhand”; collectively, “Defendants”), alleging that Defendants were deliberately indifferent to his serious medical needs and committed medical malpractice. (See Am.


Complaint (“AC”) 5 (Dkt. No. 9).)[1], [2] Before the Court is Defendants' Motion To Dismiss the Complaint (the “Motion”) pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Not. of Mot. (Dkt. No. 23).)

For the reasons stated herein, the Motion is granted.

I. Background

A. Factual Background

The following facts are drawn from Plaintiff's Complaint and are assumed to be true for the purpose of resolving the instant Motion. See Div. 1181 Amalgamated Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep't of Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam).

Plaintiff was incarcerated at Green Haven Correctional Facility (“Green Haven”). (AC 2.) Plaintiff injured his Achilles Tendon on September 10, 2016, while playing football. (Id. at 5.) Following this injury, two unnamed nurses escorted him to the facility's medical department. (Id. at 11.) Nurse McCarthy then took Plaintiff's vitals and examined him. (Id. at 5.) Plaintiff thereafter stayed in the infirmary over the weekend until Dr. Uzu examined him on September 12, 2016. (Id. at 11, 22.)

During this examination, Plaintiff told Dr. Uzu that his “pain wasn't that severe” but that he “was unable to place weight on the ball of [his] foot.” (Id. at 11.) Plaintiff also requested Dr. Uzu order an MRI for Plaintiff. (Id. at 23.) Plaintiff alleges that Dr. Uzu incorrectly diagnosed Plaintiff with a strained tendon and only ordered that an x-ray image be taken of his


lower leg. (Id. at 11, 23, 34, 38.) Plaintiff also alleges that Dr. Uzu refused Plaintiff's request for a pair of crutches to help him walk in light of the pain he was experiencing because Dr. Uzu felt it “wasn't necessary.” (Id. at 23; see also Id. at 11.)

Pursuant to Dr. Uzu's order, Plaintiff alleges that x-rays were taken on September 18, 2016, and revealed no broken bones or other injuries. (See Id. at 23; see also Id. at 31-32.)

Three days after the x-ray was taken, Plaintiff wrote a letter to the “Medical Department, ” specifically copying NA Carey, recounting the events leading up to and following his injury and complaining about continued pain and stiffness. (Id. at 38.) Moreover, he specifically wrote in this letter that “[t]he stiffness in the [A]chilles area has not subsided in the least, the pain is still at the same intensity, and flexion of the calf muscle is still non-functional.” (Id.) For that reason, Plaintiff wrote, he “ha[d] reason to believe that something is torn.” (Id.) Accordingly, he requested “a thorough examination as soon as possible.” (Id.)

Approximately one week later, on September 27, 2016, Plaintiff visited sick call once more and spoke with an unidentified nurse, again complaining about “persistent weakness in [his] right leg, ” an inability “to bear weight on the ball of [his] food, ” and growing pain verging on “unbearable” levels. (Id. at 23.) Plaintiff does not detail any change in treatment following this visit.

On October 6, 2016, Plaintiff again visited sick call to reiterate his complaints and concerns. (Id.) He made yet another overture for an MRI, (see id.), which was subsequently ordered by Dr. Bentivegna, (see Id. at 47 (listing “Bentivegna, Robert” as the “Ordering Physician”).) An orthopedic consultation was also scheduled. (See Id. at 29 (noting in the “Provider Orders” that Plaintiff “has ortho appt. sched.”).) Documentation from the consult


suggests that the referral was made by Dr. Akhand. (See Id. at 42 (listing Dr. Akhand as the doctor who referred Plaintiff).)

An MRI of Plaintiff's Achilles Tendon was taken on November 14, 2016, at Putnam hospital. (See Id. at 47.)[3] The MRI report showed a “severe tear of the Achilles [T]endon.” (Id.) The report goes on:

The tear extends obliquely through the tendon, spanning a length of approximately 6.0 cm, either completely or nearly completely disrupting the tendon. It is difficult to discern any traversing intact fibers at the distal aspect of the tear. Fluid is noted within the tear. The tendon above and below the tear is thickened, with abnormal intrasubstance signal

(Id.; see also Id. at 42 (noting a “severe tear of the right Achilles tendon . . . either completely or nearly completely disrupting the tendon”).)

On or around November 21, Plaintiff wrote to Dr. Akhand, copying NA Carey, requesting the results of his MRI. (See Id. at 53 (writing that “[i]t's been almost 7 days” since the MRI).) Dr. Akhand then informed Plaintiff that he had an “orthopedics appointment at Mount Vernon Hospital on [November 29, 2016].” (Id.) Dr. Akhand then stated: “Possible surgical repair very soon.” (Id.)

On November 29, 2016, Dr. Jonathan Holder of Mount Vernon Hospital examined Plaintiff and referred Plaintiff for surgery. (See Id. at 42.)

Notwithstanding this diagnosis, Plaintiff was not provided with crutches or another assisted walking device following the MRI, but was still “forced to walk to each location, painfully navigate numerous staircases, or be punished by [Green Haven's] staff via misbehavior


report (which would ha[ve] resulted in loss of all privileges, etc.).” (Id. at 5 (emphasis in original).)

Dr. Holder ultimately operated on Plaintiff on March 7, 2017, 178 days after the initial injury. (Id. at 43; see also Id. at 6, 50.) Following surgery, Plaintiff had a cast placed on his ankle, (see Id. at 43), and was provided with crutches, (see Id. at 6). Approximately two weeks after the surgery, on March 23, 2017, Plaintiff had his cast and dressing changed. (See Id. at 43.)

On April 13, 2017, Dr. Holder removed Plaintiff's cast. (See Id. at 44; see also Id. at 12.) Dr. Holder also requested that Plaintiff begin physical therapy to strengthen the tendon and its surrounding muscles “ASAP.” (Id. at 44; see also Id. at 12.) Dr. Akhand “reviewed” the consult on [April 21, 2017].” (Id. at 12.) Nearly a week and a half later, “the consult requesting physical therapy was entered in the FHS1 system on [May 4, 2017, ] and his appointments began soon after.” (Id.) Specifically, Plaintiff's physical therapy evaluation was performed on May 8, 2017. (Id. at 17.) Thereafter, Plaintiff “completed 17 physical therapy sessions between [May 16, 2017], and [August 22, 2017].” (Id.)

Plaintiff has previously filed two grievances through the New York State Department of Corrections and Community Supervision (“DOCCS”) on April 28 and May 1, 2017, consoliDated: No. GH-86385-17. (See Id. at 9-10.) Plaintiff's first grievance pertained to the delay in his diagnosis and treatment. (See Id. at 9.) Plaintiff's second grievance pertained to the delay in ordering his physical therapy. (See Id. at 10.)

Plaintiff received a favorable resolution for his second grievance from the Inmate Grievance Resolution Committee (“IGRC”). Specifically, on May 19, 2017, the “IGRC agree[d] with [Plaintiff] as per investigation there was no explanation for consult delay to physical


therapy[.] IGRC recommend[ed] that [Plaintiff] receive adequate medical care and treatment.” (Id. at 13.)

The Superintendent affirmed the IGRC's recommendation on June 2, 2017. (Id.)

Plaintiff appealed his consolidated grievance to the Central Office Review Committee (“CORC”) on June 9, 2017. (Id.) On August 22, 2018, the CORC issued a final decision, which partially accepted Plaintiff's request, noting that since the grievance was filed, Plaintiff “[wa]s receiving appropriate treatment.” (Id. at 17.)[4]

Plaintiff avers that this course of events gives rise to, inter alia, the following claims: medical negligence, medical malpractice, dilatory medical treatment, deliberate indifference to pain and suffering, failure to make a rational medical action, and failure to supervise. (Id. at 6.) As a result, Plaintiff seeks relief in the form of compensatory and punitive damages. (See id.)

B. Procedural Background

Plaintiff's original complaint, (Dkt. No. 2), was delivered to prison officials for mailing to the Court on June 12, 2020, (see Order to Amend dated Oct. 14, 2020, at 4 (Dkt. No. 7)).[5]Plaintiff's request to proceed in forma pauperis was granted on September 22, 2020. (Dkt. No. 6.) On October 14, 2020, the Court issued an order requiring Plaintiff to amend the


complaint to adhere to the relevant pleading standards. (Dkt. No. 7.) On December 21, 2021, pursuant to the Court's order, Plaintiff filed the AC. (Dkt. No. 9.) The AC added one Defendant, Dr. Koenigsmann. (Compare generally Compl., with AC.)

On May 18, 2021, Defendants filed a letter motion with the Court requesting a conference to discuss Defendants' intention to file a motion to dismiss. (Dkt. No. 20.) The next day, the Court issued an order terminating the letter motion and setting the deadline for Defendants to file their Motion to Dismiss by no later than June 21, 2021, the deadline for Plaintiff to file a response by no later than July 21, 2021, and the deadline for Defendants to file a reply by no later than August 21, 2021. (Dkt...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT