Faust v. Jun, 14-CV-6702 FPG
| Decision Date | 31 August 2017 |
| Docket Number | 14-CV-6702 FPG |
| Parties | DWAYNE FAUST, Plaintiff, v. DR. YOUNG JUN, et. al., Defendants. |
| Court | U.S. District Court — Western District of New York |
Pro se Plaintiff Dwayne Faust filed this civil rights action pursuant to 42 U.S.C. §§ 1983, 1985 and 1986 against prison officials and medical personnel, alleging they violated his rights under the Eighth Amendment of the United States Constitution. ECF No. 40. Defendants Dr. Young Jun, Dr. Jadow Rao, Dr. Ranee Christopher, Dr. Lesley Germain, Chief Medical Officer Dr. Carl J. Koenigsmann, Deborah Graf, Carol Linsey, Gregg Mohring, Sergeant Kenneth Kyre, Officer Guy Polucci, and Superintendent David Unger, now renew1 their motion for summary judgment. ECF No. 52. Although the Court granted Plaintiff an extension of time to file a response until May 3, 2017 (see ECF No. 57), Plaintiff has not filed any response. For the following reasons, Defendants' motion is GRANTED, and this case is dismissed with prejudice.
On January 29, 2013, Plaintiff injured his left knee while incarcerated in the Wyoming Correctional Facility ("Wyoming C.F."). He was seen and treated by Deborah Graf, a Physician Assistant. She noted Plaintiff's left knee was swollen and showed minor abrasions. Sheadministered pain medication, issued crutches, transferred him to Attica Correctional Facility ("Attica C.F.") for further medical treatment and recommended rest. At Attica C.F., Plaintiff's knee was x-rayed, he was given pain medication, issued a brace and told to keep his leg elevated.
On January 31, 2013, Dr. Jadow Rao saw Plaintiff, who was complaining of "extreme pain." ECF No. 40 at 4. Dr. Rao noted the swelling had gone down and cleared Plaintiff to return to Wyoming C.F. Before his transport, Plaintiff's brace was taken from him because it had a piece of metal in it. The following day, Plaintiff was seen by Dr. Young Jun at Wyoming C.F. who noted swelling and cellulitis. Plaintiff returned to Attica C.F., where he was treated until February 7, 2013. During that time, Dr. Rao examined Plaintiff's leg, and prescribed various pain medications and antibiotics. He was sent back to Wyoming C.F. on February 7, 2013 and encouraged to walk. Prior to transport, his mobility aids were again taken from him.
On February 8, 2013, Dr. Jun again noted swelling in Plaintiff's knee and ordered an M.R.I. Plaintiff alleges Dr. Jun failed to address his "complaint that he was unable to walk without severe pain." ECF No. 40 at 5-6. On February 19, 2013,2 Plaintiff attended sick call and was seen by Carol Linsey, a nurse, who noted Plaintiff, who was in a wheelchair, wanted to see the doctor for a mobility aid. On February 22, 2013, Dr. Ranee Christopher, a radiologist not affiliated with the New York State Department of Corrections and Community Supervision ("DOCCS"), issued an M.R.I report finding "extensive injury to the knee." ECF No. 53-1 at 15.
On Saturday, February 23, 2013,3 Plaintiff re-injured his knee and requested emergency sick call. Correctional Officer Guy Paolucci denied Plaintiff's request and, as a result, Plaintiffwaited to attend sick call until February 25, 2013. He was seen by a nurse who noted his left knee and ankle were swollen, and who sent him to Dr. Jun. After reviewing Plaintiff's M.R.I. report, Dr. Jun issued Plaintiff crutches, a knee brace and a sleeve.
The same day, Plaintiff filed a grievance detailing the events from Plaintiff's initial injury. Plaintiff met with Sergeant Kenneth Kyre on March 4, 20134 about his grievance. Plaintiff alleges Kyre attempted to coerce him to withdraw the grievance but he refused. Plaintiff's grievance was denied by Superintendent David Unger and his appeal was later denied by the Central Office Review Committee ("CORC").
On March 15, 2013, still suffering from severe pain, Plaintiff went to sick call and was informed he had a torn Anterior Cruciate Ligament ("ACL") and Lateral Collateral Ligament ("LCL") in his left knee. ECF No. 40 at 6. Plaintiff used crutches until he was called back to the infirmary on March 21, 2013 by Dr. Jun and was then issued a wheelchair.
Plaintiff was transferred to Wende Correctional Facility to be seen by Dr. Lesly Germain, an orthopedic surgeon, on April 18, 2013. Dr. Germain noted Plaintiff exhibited drop foot, a condition that causes the front of the foot to drag while walking. On June 11,2013, Dr. Germain performed anthroscopic surgery to repair Plaintiff's knee. Dr. Jun removed Plaintiff's stitches on June 24, 2013 and Plaintiff was sent for his post-surgery checkup the next day. Plaintiff alleges that his questions about treatment or surgery to repair his drop foot were not addressed at eitherappointment. Plaintiff began physical therapy, attending as many as two session per week, from July 2, 2013 through December 31, 2013.
Plaintiff was scheduled for surgery to repair his drop foot with Dr. Germain on September 26, 2013, but the surgery ultimately did not go forward. Plaintiff was fitted for an Ankle Foot Orthosis brace for his foot the same day.
Summary judgment is appropriate when the record shows that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning material facts are genuine where the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine issues of material fact exist, the court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in favor of the non-moving party. Id. at 255. The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. When the moving party has met this initial responsibility, the non-moving party must come forward with "specific facts showing a genuine issue [of material fact] for trial." Fed. R. Civ. P. 56(e)(2).
If a non-moving party fails to oppose a summary judgment motion, then "summary judgment, if appropriate, shall be entered against" him. Fed. R. Civ. P. 56(e). Indeed, an opposing party may not rely merely on allegations or denials in its own pleading, but must set forth specific facts showing that there is a genuine issue for trial. Id. Where the non-moving party "chooses the perilous path of failing to submit a response to a summary judgment motion, the district court maynot grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial." Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001).
"To state a valid claim under 42 U.S.C. § 1983, a plaintiff must allege that the challenged conduct (1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir.1994)). A prerequisite for liability under a Section 1983 claim is "personal involvement" by the defendants in the alleged constitutional deprivation. Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998).
A defendant may be 'personally involved' in causing a constitutional deprivation if: (1) defendant participated directly in the alleged infraction; or (2) acting in a supervisory capacity, defendant (a) failed to remedy a continuing or egregious wrong after learning of a violation, (b) created a policy or custom under which the unconstitutional practices occurred or allowed such policy or custom to continue, or (c) was 'grossly negligent' in managing subordinates who actually caused the constitutional deprivation.
Candelaria v. Coughlin, 787 F. Supp. 368, 372 (S.D.N.Y. 1992) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)).
Defendants assert that Plaintiff has failed to exhaust his administrative remedies as required by The Prisoner Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). In relevant part, the PLRA provides that "[n]o action shall be brought with respect to prison conditions under Section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C.§ 1997e(a). As such, Defendants argue that the scope of Plaintiff's lawsuit should be limited to the contents of Plaintiff's single filed grievance and further limited in time to the seven-day period Plaintiff was without crutches, or February 19-25, 2013. Defendants contend they are entitled to summary judgment regarding the allegations in Plaintiff's Amended Complaint that address events that occurred after February 25, 2013 because they are not exhausted.
The Court declines to so limit Plaintiff's Amended Complaint. Plaintiff did file a grievance relating to his medical care which he pursued through appeal to the CORC. While the Amended Complaint includes events that transpired after the grievance filing date and includes Defendants not named in Plaintiff's filed grievance, the Court finds it unnecessary to so limit this legal action.
Plaintiff's claims against Defendants Christopher, Germain, Graf, Jun, Rao, Linsey and Paolucci all relate to Plaintiff's medical treatment and allege Defendants were deliberately indifferent to Plaintiff's medical conditions. "In order to establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must prove deliberate indifference to...
To continue reading
Request your trial