Nelson v. Deming, 6:13–CV–06252 EAW.

• Decision Date: 30 September 2015
• Docket Number: No. 6:13–CV–06252 EAW.,6:13–CV–06252 EAW.
• Citation: 140 F.Supp.3d 248
• Parties: Dennis NELSON, Plaintiff, v. Nurse DEMING, C.O. Lawrence, K. Salotti, NP, Dr. Trobout, C. Gardner, and Officer Ryan, Defendants.
• Court: U.S. District Court — Western District of New York

140 F.Supp.3d 248

Dennis NELSON, Plaintiff,

v.Nurse DEMING, C.O. Lawrence, K. Salotti, NP, Dr. Trobout, C. Gardner, and Officer Ryan, Defendants.

No. 6:13–CV–06252 EAW.

United States District Court, W.D. New York.

Signed Sept. 30, 2015.

Dennis Nelson, Attica, NY, pro se.

Hillel David Deutsch, Attorney General's Office, Rochester, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, District Judge.

I. INTRODUCTION

Pro se plaintiff Dennis Nelson ("Plaintiff"), an inmate at Five Points Correctional Facility ("Five Points"), brings this action against employees of the Department of Corrections and Community Supervision Services ("DOCCS"), pursuant to 42 U.S.C. § 1983, alleging violations of the Eighth Amendment for Defendants' inadequate treatment of an ulcer located on his left leg. (Dkt. 1, 7, & 18). Plaintiff seeks a court order allowing him to obtain treatment at an outside hospital and a monetary award for his pain and suffering. (Dkt. 1 at 5; Dkt. 7 at 6; Dkt. 18 at 7). Plaintiff also requests an attorney to assist him with his case. (Dkt. 18 at 7).

Presently before the Court is Defendants' motion for summary judgment in lieu of an answer (Dkt. 11) and supplemental motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6) (Dkt. 19). Defendants argue that they are entitled to summary judgment on the claims contained in Plaintiff's original and supplemental complaints, because Plaintiff has not shown that Defendants were deliberately indifferent to his medical needs and because Plaintiff fails to allege personal involvement. (Dkt. 11–3 at 4–5). In the alternative, Defendants argue that Plaintiff's in forma pauperis ("IFP") status should be revoked. (Id. at 9). Defendants contend that Plaintiff's second supplemental complaint must be dismissed because Plaintiff did not exhaust his administrative remedies, as required by the Prison Litigation Reform Act ("PLRA"), and also because Plaintiff's allegations do not state a claim for deliberate indifference. (Dkt. 19 at 2–3). For the following reasons, Defendants' motion for summary judgment and motion to dismiss are granted. Defendants' motion to revoke Plaintiff's IFP status and Plaintiff's request to appoint counsel are denied as moot.

II. BACKGROUND

The following allegations are contained in Plaintiff's complaint and exhibits to the complaint (Dkt. 1, 8–9), and two supplements to the complaint. (Dkt. 7 & 18).¹

Plaintiff suffers from an ulcer on his leg, which he has allegedly had for 18 years. (Dkt. 9–1 at 2; Dkt. 18 at 5). The ulcer is roughly four inches by six inches and is located on Plaintiff's lower left leg. (Dkt. 9–1 at 8). Plaintiff has a documented history of refusing treatment for the ulcer, including dressings and medication. (Id. at 9, 12).

On March 8, 2012, a Five Points physician conducted a physical exam on the ulcer, which revealed a moderate amount of drainage from Plaintiff's wound but no tunneling or undermining. (Id. at 2). Plaintiff reported that he was experiencing a pain level of eight out of ten. (Id. at 2–3). Plaintiff's wound was cleaned and treated, and dressing was applied. (Id. at 2). Plaintiff was advised to sanitize the wound and change the dressings daily. (Id. ).

On May 18, 2012, nurse practitioner Kristin Salotti ("Nurse Salotti") submitted a culture of Plaintiff's leg wound for testing. (Id. at 1). The culture tested positive for a moderate amount of methicillin-resistant Staphyloccus aureus ("MRSA").² (Id. ).

On December 24, 2012, Plaintiff was referred to "SONY Upstate" for reinsertion of two peripherally inserted central catheters (PICCS), which Plaintiff had previously removed himself. (Dkt. 8 at 2, 8, 10). On January 10, 2012, Nurse Salotti referred Plaintiff to an outside medical facility for a biopsy of his osteomyelitis (a bone infection) and MRSA in his left tibia. (Id. at 1).

On January 18, 2013, Plaintiff visited Cayuga Medical Center for treatment relating to his ulcer. (Id. at 4–9). Plaintiff was evaluated with a boil, directed to apply gentle heat to the wound, and to make a follow-up appointment. (Id. at 5). The medical records associated with Plaintiff's visit note that he was in a stable condition. (Id. at 7). In the "NYDOCS Request & Report of Consultation" submitted relating to Plaintiff's visit, his caregivers noted that it was "very difficult " to manage Plaintiff's medical care due to his noncompliance. (Id. at 10) (emphasis in original).

Between September 2012 and May 2013, DOCCS employees reported numerous acts of noncompliance by Plaintiff, including refusing antibiotics, and not allowing nurses to change his dressings or sanitize his wound. (Id. at 11–20). In April 2013, Plaintiff refused wound dressing changes and to take his medications on multiple occasions, even after speaking with his providers and discussing options to alleviate any discomfort. (Id. at 14). Although on some occasions Plaintiff communicated that he did not want to receive medications because they caused him to experience side effects (id. ), on other occasions Plaintiff stated that he "[didn't] want [the medication]," or refused to take the medication for no reason (id. at 16). On May 16, 2013, Plaintiff refused to sign for and accept a referral to the wound clinic. (Id. at 12). Plaintiff listed his reason for declining the referral as "I done with you!" (Id. ).

On May 10, 2013, Plaintiff filed a complaint against Ms. Deming, nurse ("Nurse Deming"), Nurse Salotti, Ms. Lawrence, Corrections Officer, and Mr. R. Casper, pursuant to 42 U.S.C. § 1983. (Dkt. 1 at 7). In the complaint, Plaintiff alleges that Nurse Deming failed to change his wound dressings, and that Correction Officer Lawrence refused to call the nurse when Plaintiff was in pain. (Id. at 3). Plaintiff further alleges that his health was in danger, as the MRSA infection could cause him to lose his leg, or potentially spread through his blood stream and kill him. (Id. at 3, 5). Plaintiff indicates on the complaint form that his corrections facility had a grievance program and that he filed a grievance documenting his complaint (id. at 4, 8), but the form also indicates that Plaintiff had not yet received an answer or appealed to the highest level of the grievance process (id. at 4).

On August 20, 2013, Plaintiff filed a supplemental complaint alleging violations of 42 U.S.C. § 1983, and named Nurse Salotti as the sole defendant. (Dkt. 7 at 5). Plaintiff's supplemental complaint alleges that (1) he was denied due process because he did not receive adequate treatment for his leg injury, and (2) he was denied access to the courts because Nurse Salotti refused to provide him with his medical records. (Dkt. 7 at 5–6). In his supplemental complaint, Plaintiff indicates that he grieved and appealed his claims relating to the allegedly inadequate treatment of his leg and the withholding of his medical records by Nurse Salotti (id. at 5–6), but when asked the result of the grievance relating to his medical records claim, Plaintiff stated, "the same result's from the other's." (Dkt. 7 at 6).

On July 21, 2013, Plaintiff filed another inmate grievance complaint. (Id. at 8). The grievance states that Plaintiff did not receive proper treatment for the MRSA infection in his left leg. (Id. ). Plaintiff requested that his administrative remedies be exhausted and that he receive proper treatment. (Id. ). Plaintiff attached this grievance to his supplemental complaint. (Id. ).

On October 24, 2014, Plaintiff filed a second supplemental complaint, also alleging violations pursuant to 42 U.S.C. § 1983, against Nurse Salotti, Dr. Trobout, C. Gardener, Officer Ryan, Officer R. Casper, and Officer J. Page. (Dkt. 18 at 1). The allegations contained in the second supplemental complaint include denial of proper medical treatment by Nurse Salotti and Dr. Trobout, and that Nurse Gardner made an inappropriate comment about his leg. (Id. at 5–6). Plaintiff alleges that Dr. Trobout touched his leg without wearing gloves, and that he contracted MRSA in his leg because nurses had touched his leg without gloves. (Id. at 6). Plaintiff further alleges that he received a "Hypro chamber treatment," which he alleges is not meant to treat an 18 year-old wound, and that he was denied proper medical treatment. (Id. at 5).

Plaintiff attached to his second supplemental complaint a copy of a grievance against Officer Ryan, dated September 14, 2014, alleging that Officer Ryan said that Plaintiff's "leg will be coming off soon," and was "passing around lies" about Plaintiff losing his leg. (Id. at 8). Plaintiff also attached a notice from the director of the grievance program stating that Plaintiff's grievance FPT–28821–14, entitled "Not Wearing Gloves," was received on July 7, 2014. (Id. at 10). Plaintiff indicated on the complaint form that he grieved his claim against Nurse Salotti, and that his appeal was received by the CORC on July 7, 2014. (Id. at 6). With regard to his claim against Dr. Trobout, Plaintiff indicated on the complaint form that he had not yet received an answer to his grievance, and that his appeal of the grievance was mailed "today 9–14–14." (Id. at 7).

III. PROCEDURAL HISTORY

Plaintiff filed his complaint against defendants Nurse Deming, Correction Officer Lawrence, Mr. R. Casper, and Nurse Salotti, on May 10, 2013, alleging violations of 42 U.S.C. § 1983. (Dkt. 1 at 1, 7). On August 20, 2013, Plaintiff filed a related complaint alleging violations of 42 U.S.C. § 1983, naming only Nurse Salotti, which the Court deemed to be a supplement to Plaintiff's original complaint. (Dkt. 6 & 7). On November 15, 2013, Defendants moved for summary judgment in lieu of an answer, arguing that Plaintiff's complaint should be dismissed as he failed to allege personal involvement by the Defendants, and that the Defendants were not deliberately indifferent to Plaintiff's medical needs. (Dkt. 11 at 4–5). In the alternative, Defendants requested that Plaintiff's IFP status be revoked, as he previously had more than three actions...