Hale v. Rao

Decision Date08 March 2011
Docket NumberNo. 9:08–CV–612.,9:08–CV–612.
Citation768 F.Supp.2d 367
PartiesJohn HALE, Plaintiff,v.Jadow RAO; J. Ireland; Mack Revell; R. Furnia; J. Silver; John Does (2); and Jane Does (4),1 Defendants.
CourtU.S. District Court — Northern District of New York


John Hale, Attica, NY, pro se.Richard Lombardo, New York State Attorney General, Albany, NY, for Defendants.



Plaintiff John Hale (plaintiff or “Hale”), a New York state prison inmate proceeding pro se and in forma pauperis, commenced this action on March 19, 2008, pursuant to 42 U.S.C. § 1983 and alleges that defendants—11 employees of the New York Department of Correctional Services (“DOCS”)—violated his Eighth Amendment rights. Plaintiff seeks monetary damages. On March 30, 2010, defendants moved for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure.2 Defendants claim that the complaint should be dismissed as against defendants Ireland, Furnia, Reyell, Silver, and Rao because Hale failed to exhaust his administrative remedies. Defendants further argue that defendant Rao must be dismissed because he is entitled to qualified immunity and Hale received sufficient medical care.

Plaintiff's response in opposition to defendants' motion fails to mirror defendants' statement of material facts and does not include a formal memorandum of law. Instead, plaintiff has filed a series of letters and affidavits generally opposing summary judgment and requesting that he be appointed counsel. See Dkt. Nos. 63–65, 67–74. Plaintiff's failure to respond in strict adherence to Local Rule 7.1 is not fatal to his claims. Courts often attempt to find some parity between the moving and opposing documents when a pro se party is involved. See Johnson v. Connolly, No. 9:07–CV–1237, 2010 WL 2628747, at *2 (N.D.N.Y. June 25, 2010) (McAvoy, J.); Brown v. Artus, 647 F.Supp.2d 190, 199 (N.D.N.Y.2009) (Peebles, M.J.). It is clear from Hale's papers that he contests facts and opposes defendants' motion for summary judgment. Further, Hale is illiterate, has a documented low level of intelligence, and is proceeding pro se. Therefore, the facts, inferences, and arguments will be gleaned from his complaint, deposition testimony, letters and affidavits in opposition, and other pertinent documents in the record.


At all relevant times plaintiff was, and remains, a prisoner in the custody of DOCS. In his complaint, plaintiff claims that while housed at Downstate Correctional Facility (“Downstate”) in 2003, he purposely ingested ten to 20 surgical staples.3 These staples remained inside plaintiff's body.

A. The Excessive Force

On the morning of May 17, 2006, plaintiff was allegedly assaulted by defendant corrections officers Ireland, Reyell, Furnia, and Silver at the Clinton Correctional Facility (“Clinton”). Plaintiff claims that defendant Ireland cursed at him and punched him in the face after plaintiff asked for his medications. However, the Inmate Injury Report characterizes the incident as an assault on staff, and Hale reportedly explained: “I ask CO for my meds as I was coming in door. CO stated fuck off and I hit CO. Lombardo Decl., Ex. B, at 227. After the initial contact with Ireland, plaintiff fell to the floor. The remaining defendant corrections officers then responded and began restraining/assaulting plaintiff, who was soon handcuffed. Hale sustained injuries to his face and mouth, and some of his teeth were knocked loose. His left shin was “split open” in two places when one of the officers hit him with a wooden baton, and he received a wound in his upper chest/shoulder when one of the officers stabbed him with a key. Plaintiff's shin was swollen and tender, and required ten sutures. Hale was unable to bear weight on this leg.

After receiving a medical evaluation in the infirmary, plaintiff was placed in the Special Housing Unit (“SHU”) for several days before being moved to the Mental Health Unit (“MHU”). Plaintiff was charged with assaulting staff and found guilty after a disciplinary hearing. Plaintiff claims that he did not appeal this ruling because he cannot read or write.

B. The Deliberate Indifference to Medical Needs

Following the incident, plaintiff was treated by the medical staff at Clinton. The treatment included x-rays, and on May 24–25, 2006, medical staff re-evaluated his leg injury, cleaned the wound, and provided pain killers. On June 5–7, 2006, plaintiff complained that his leg wound was opening up and not healing properly. Medical staff noted that Hale had removed some sutures himself, and new dressings were applied. On June 9, 2006, plaintiff was again evaluated by medical staff who documented “some swelling” above his left foot and noted that it appeared that plaintiff had been “picking” at his wound. The wound was cleaned and redressed, and he was advised not to pick at the area. On June 10, 2006, plaintiff complained that he had not received any medical treatment since the May 17 incident. The treating staff noted that he had been evaluated on at least seven different days since the incident. The staff also indicated that plaintiff had a healing abrasion on his upper left arm, a small open area with two sutures on his lower left leg, and a missing tooth. There were no signs or symptoms of infection at that time. Plaintiff began the process of being transferred out of Clinton on June 9, 2006.

Plaintiff was transferred to Southport Correctional Facility (“Southport”) on June 12, 2006. The very next day he again complained that he had not received any medical treatment since May 17, 2006, and claimed that his feet were green. The medical staff noted that there were no deformities on his feet, and the wounds on his left shin and left upper arm were healing well with no signs of infection. On June 19, 2006, plaintiff took an excessive amount of Ibuprofen and was taken to an outside medical facility. On June 23, 2006, plaintiff was taken to the infirmary after he attempted to hang himself by tying a shoestring around his neck. Staff noted that Hale was “babbling,” his sentences made no sense, and he claimed to have metal in his stomach. Plaintiff was evaluated by a clinician at the Central New York Psychiatric Center (“CNYPC”) on June 29, 2006.

On June 30, 2006, he advised staff that he again wanted to hang himself. Plaintiff was evaluated by medical staff who noted that he had picked the scabs off his left leg, claimed to have rubbed feces in these wounds, and refused to take his mental health medications. Plaintiff was advised to wash out his wounds, and he was referred for mental health services and placed on suicide watch. On July 21, 2006, plaintiff made an emergency sick call because he had stuck an office staple into the top of his left foot. Medical staff removed the staple, cleaned the area, and described the injury as “superficial.” During this exam, the staff noticed a scarred-over wound on plaintiff's lower right abdomen. Plaintiff claimed that he had inserted a paper clip into this part of his body, which was hard to the touch. The wound did not cause plaintiff any pain and was not open or infected. Hale would not tell the staff how long ago he had inserted the paper clip. He was again referred for mental health services.

Thereafter, plaintiff was transferred to Elmira Correctional Facility (“Elmira”), where he was evaluated by a radiologist on October 3, 2006. The radiologist found no evidence of facial fractures. The following day plaintiff was referred to an outside cardiologist for an evaluation following an episode of tachycardia. The evaluation took place on October 18, 2006, and revealed no problems or abnormalities.

In late November 2006 plaintiff was transferred to Attica Correctional Facility (“Attica”), where Dr. Rao acted as Health Services Director. On November 21, 2006, plaintiff complained of severe pain in his mouth, for which he was given Motrin and referred for dental services. On January 24–26, 2007, plaintiff was seen by medical staff and claimed that he had foreign bodies inside his abdomen that had not been removed during a previous surgery. Hale complained of abdominal pain, claimed that metal was protruding from his stomach, and noted that he had not been able to eat for eight days. He was evaluated during these visits, but the medical providers did not observe any signs of metal protruding from his abdominal area. Nonetheless, plaintiff was referred to a physician, and x-rays were ordered. On January 27, 2007, plaintiff was evaluated by Dr. Laskowski, who admitted him to the infirmary for observation. During his four-day stay in the infirmary, plaintiff refused meals and complained that he could not keep any food down, but staff did not observe any vomiting. A January 29, 2007, x-ray showed a foreign body in a superficial area of Hale's abdomen and did not pose a danger of causing further harm.

In February 2007 plaintiff was moved back to the CNYPC for five months, during which he had one staple surgically removed from his abdomen while two others simply “popped out.”

Plaintiff then returned to Attica, where he again came under the care of Dr. Rao. On August 6, 2007, an x-ray of plaintiff's abdomen showed metallic foreign bodies. Plaintiff was given a tetanus shot on that date. On August 17, 2007, plaintiff was admitted to the infirmary for observation after he complained of nausea that he claimed was related to the metal in his stomach. An x-ray indicated that these objects had not moved since the prior x-ray. On August 21, 2007, Dr. Rao referred plaintiff for a surgical consultation, which he underwent on September 20, 2007. An October 2, 2007, x-ray report noted that a staple “lies within the superficial skin of the right lower abdomen.” On November 30, 2007, plaintiff had x-rays that again revealed multiple metallic foreign bodies in his abdomen. On December 28, 2007, Dr. Rao referred plaintiff for another...

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