Simpson v. Rodas, 10-CV-6670(CS)

• Decision Date: 21 September 2012
• Docket Number: No. 10-CV-6670(CS),10-CV-6670(CS)
• Parties: THEODORE SIMPSON, Plaintiff, v. P.A. RODAS, GREEN HAVEN C.F.; P.A. BEN OAKES, SOUTH PORT C.F.; C. FELKER, NURSE ADMINISTRATOR FOR SOUTH PORT C.F.; M.D. JIRI BEM, FOR UPSTATE HOSPITAL; M.D. VALCRIAN, FOR ALBANY MEDICAL; M.D. H. SILVERBERG, FOR GREAT MEADOW C.F.; M.D. D. KARANDY, FOR GREAT MEADOW C.F.; J. COLLINS, NURSE ADMINISTRATOR FOR GREAT MEADOW C.F.; HEAD MEDICAL DOCTOR DR. LESTER WRIGHT, FOR D.O.C.S.; RITA GRINBERG, FOR D.O.C.S. MEDICAL REGIONAL OFFICE, Defendants.
• Court: U.S. District Court — Southern District of New York

THEODORE SIMPSON, Plaintiff, v. P.A. RODAS, GREEN HAVEN C.F.; P.A. BEN OAKES, SOUTH PORT C.F.; C. FELKER,

NURSE ADMINISTRATOR FOR SOUTH PORT C.F.; M.D. JIRI BEM,

FOR UPSTATE HOSPITAL; M.D. VALCRIAN, FOR ALBANY MEDICAL;

M.D. H. SILVERBERG, FOR GREAT MEADOW C.F.; M.D. D. KARANDY,

FOR GREAT MEADOW C.F.; J. COLLINS, NURSE ADMINISTRATOR FOR GREAT MEADOW C.F.;

HEAD MEDICAL DOCTOR DR. LESTER WRIGHT, FOR D.O.C.S.; RITA GRINBERG,

FOR D.O.C.S. MEDICAL REGIONAL OFFICE, Defendants.

No. 10-CV-6670(CS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Dated: September 21, 2012

OPINION AND ORDER

Appearances:

Theodore Simpson

Pro Se Plaintiff

Steven N. Schulman

Office of the Attorney General, New York State

Counsel for State Defendants

Michael E. Catalinotto, Jr., Esq.

Maynard, O'Connor, Smith & Catalinotto, LLP

Saugerties, New York

Counsel for Defendant Dr. Valerian

Seibel, J.

Before the Court are four motions: (1) a Motion to Dismiss and Change Venue brought by Defendants Physician Assistant ("P.A.") Byron Rodas, P.A. Benjamin Oakes, Nurse Administrator ("N.A.") C. Felker, Dr. Howard E. Silverberg, Dr. David Karandy, N.A. JanetCollins, the New York State Department of Corrections and Community Supervision ("DOCCS") Medical Director Dr. Lester Wright, and Regional Health Services Administrator Rita Grinbergs,¹ all current or former employees of DOCCS, formerly the Department of Correctional Services ("DOCS"), and Dr. Jiri Bern, a private physician entitled to representation under New York Corrections Law § 24-a (collectively, the "State Defendants"), (Doc. 19); (2) a Motion to Dismiss and Change Venue brought by Defendant Dr. Valerian,² (Doc. 45); (3) Plaintiff's Motion to Strike Respondent's Motion in Furtherance [sic] Support, (Doc. 38); and (4) Plaintiff's Motion for Preliminary Injunction, Temporary Restraining Order, and Assignment of Counsel, (Doc. 59). For the following reasons, the Motions to Dismiss are GRANTED IN PART and DENIED IN PART, Plaintiff's Motion to Strike is DENIED,³ and Plaintiff's Motion for Preliminary Injunction and Temporary Restraining Order is DENIED. The case is hereby transferred to the United States District Court for the Northern District of New York (the "Northern District"), and Plaintiff's request for counsel is denied without prejudice to renewal in the transferee District.

I. BACKGROUND

The following facts are taken from the AC and are accepted as true for purposes of this Opinion. Plaintiff was incarcerated at Green Haven Correctional Facility ("Green Haven") from 2006 until on or about December 2008. (AC II.D.) P.A. Rodas was Plaintiff's primary care provider at Green Haven, where Plaintiff experienced irregular bowel movements and severe stomach pains. (Id.) When Plaintiff complained to Rodas, he was given gas tablets, and although Plaintiff asked for a colon exam on several occasions, it was not ordered. (Id.) In April 2008, after a doctor at Green Haven discovered that Plaintiff suffered from a stool blockage, he was rushed to Mount Vernon Hospital for treatment. (Id.) Plaintiff was diagnosed with diverticulosis, a disease of the intestines, at Mount Vernon Hospital, but no one there informed him of this diagnosis. (Id.)

Plaintiff was transferred to Southport Correctional Facility ("Southport") on or about December 2008. (Id. ¶ 1.) At Southport, Plaintiff made requests for pain medication, to be seen by a specialist, and for a colonoscopy, but P.A. Oakes denied these requests. (Id. ¶ 4.) Plaintiff began to complain in writing to N.A. Felker about these denials and the care he was receiving from Oakes. (Id. ¶ 6.) In or about June 2008, Plaintiff was admitted to St. Joseph Hospital in Syracuse, New York for one week due to complications with his digestive system, and he was given medications to manage his pain and antibiotics for infection. (Id. ¶ 8.) Felker visited Plaintiff at the hospital and looked at his chart to evaluate the extent of Plaintiff's condition. (Id. ¶ 9.) Plaintiff returned to Southport on or about June 26, 2008, and Oakes administered medication and antibiotics to Plaintiff for one week. (Id. ¶ 10.) Plaintiff sought a second opinion concerning his condition because he believed that Oakes and Felker were ignoring his complaints and concerns, and in or about July 2008, Plaintiff was sent to Elmira CorrectionalFacility ("Elmira") to see a specialist. (Id. ¶¶ 11-12.) While at Elmira, Plaintiff lodged various complaints about his treatment at Southport, but no action was taken or relief granted. (Id. ¶¶ 14-15.)

In or about September 2008, Plaintiff was transferred to the Auburn Correctional Facility ("Auburn"). (Id. ¶ 16.) The health care providers at Auburn determined that Plaintiff's condition had worsened since his visit to Mount Vernon Hospital in April 2008, and they completed a colon exam on Plaintiff. (Id.) In October and November 2008, Plaintiff filed grievances concerning his condition, the pain he was suffering, and what Plaintiff believed to be a denial of medical treatment at Auburn. (Id. ¶¶ 18-19.) In or about December 2008, Plaintiff was transferred back to Southport, where he was again under the care of Oakes and Felker. (Id. ¶ 20.) He continued to experience pain from the diverticulosis, and visited sick call to be evaluated. (Id. ¶ 21.) Plaintiff also continued to complain about his condition and to file complaints and grievance letters to Felker concerning his condition and alleged lack of treatment. (Id. ¶¶ 21-22.) Eventually, in or about April 2009, Plaintiff was seen by Dr. Bern, a specialist, who informed the Plaintiff that surgery was necessary. (Id. ¶¶ 23-24.) Plaintiff agreed to undergo the procedure. (Id. ¶ 25.)

On or about June 12, 2009, Plaintiff was admitted to the Upstate Hospital ("Upstate") in Syracuse, New York for surgery, which Bern performed. (Id. ¶ 28.) In the recovery room after the surgery, Plaintiff complained to the nurses that he was experiencing pain in his side. (Id. ¶ 29.) The resident nurse found a blood stain near Plaintiff's back, which indicated that Plaintiff was bleeding internally. (Id.) The next day, another nurse found a larger blood stain in the same area, and the resident doctor determined that Plaintiff had been bleeding internally for two days due to a failed vessel connection during the surgery. (Id. ¶ 30.) That same day, Plaintiff wasadmitted for another surgery to stop the internal bleeding, and Plaintiff stomach was cut open during the procedure, which allegedly Plaintiff did not authorize. (Id. ¶¶ 31, 34.) On or about June 20, 2009, Plaintiff's stomach began to expand abnormally, and a doctor at Upstate determined that a tube that is used to relieve pressure and pain after surgery had been removed from Plaintiff's stomach without authorization and against normal practices. (Id. ¶¶ 35-36.) The tube was replaced that same day to relieve pressure in Plaintiff's stomach. (Id. ¶ 37.) On or about June 28, 2009, Plaintiff was released from Upstate, despite his objection, and was sent to the Auburn Special Housing Unit. (Id. ¶¶ 39-40.) The next day, Plaintiff was transferred back to Southport, and the admissions nurse who examined him noted that Plaintiff had an infection. (Id. ¶ 42.)

On or about July 20, 2009, Plaintiff was taken off the pain medication prescribed by the doctors at Upstate. (Id ¶ 43.) He continued to file many letters and grievances with various people, including Southport's N.A. and DOCCS officials, regarding the medical care he was receiving. (Id. ¶¶ 44-45.) On or about July 26, 2009 and August 9, 2009, Plaintiff received letters from the N.A. and DOCCS, respectively, stating that there was nothing that they could do concerning Plaintiff's grievances and that the medical professionals had acted appropriately. (Id. ¶¶ 46-47.) On or about August 20, 2009, Plaintiff filed a letter with Dr. Wright, and received a return letter on or about September 2, 2009 stating that Wright had directed Rita Grinbergs to answer Plaintiff's complaints. (Id. ¶¶ 49-50.)

On or about September 19, 2009, Plaintiff was transferred to Great Meadow Correctional Facility ("Great Meadow") where he continued to complain about his medical condition, an infected wound, and the pain he was suffering. (Id. ¶¶ 52-53.) Plaintiff saw multiple health care providers between September 2009 and November 2009. (Id. ¶¶ 54-58.) At a September 26,2009 sick call visit, Plaintiff presented with a hernia that had developed from his prior surgeries, and a sick call nurse allegedly arranged for him to be seen by a doctor in March 2010, although she did not assist him further than that. (Id. ¶ 54.) On or about November 13, 2009, Dr. Silverberg examined Plaintiff's hernia and told Plaintiff that he would be seen by a specialist at Coxsackie Correctional Facility. (Id. ¶ 57.) During a November 23, 2009 visit with Silverberg, Plaintiff alleges that Silverberg walked out of the room without giving him the opportunity to express his concerns about his pain, extreme weight loss, bleeding, and vomiting, (id. ¶ 58), so he filed December 15, 2009 and December 17, 2009 grievances concerning the inadequate medical care he had received from Silverberg and other health care providers at Great Meadow, ( id. ¶¶ 59, 61).

Plaintiff alleges that the hernia developed because of what he considers to be malpractice that occurred during his first two surgeries. (Id. at III ¶ 4.) Although he complained about the pain that the hernia caused him, Plaintiff alleges that he had to wait approximately six months - during which time he suffered from pain, bleeding, weight loss, loss of appetite, and a distended stomach - before he was approved for corrective surgery at Albany Medical Center. (Id. ¶¶ 5-6.) Plaintiff alleges that during the hernia procedure performed by Dr. Valerian, Valerian placed medical mesh in his stomach incorrectly, which led Plaintiff to suffer from more pain and bleeding, additional weight loss, and sleeplessness. (Id. ¶ 8.)

Between December 2009 and ...