Visintine v. Zickefoose
| Decision Date | 05 September 2014 |
| Docket Number | Civil Action No. 11-4678 (RMB) |
| Parties | ROBERT S. VISINTINE, Plaintiff, v. DONNA ZICKEFOOSE, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
After three years of litigation and ninety-five docket entries, this matter, ripe for resolution of Defendants' motion for summary judgment, warrants a careful sorting-out.
For the reasons detailed below, Defendants' motion will be denied as to four of Plaintiff's claims and granted as to the remainder of his many challenges. Two of these surviving claims (related to the FCI Fairton) will be severed into their own, new and separate matter, and Plaintiff will be directed to re-plead them with the required degree of specificity, provided that he expressly accepts his financial responsibility for litigating those claims and identifies the appropriate defendants. With regard to the two surviving claims remaining in the instant matter (related to the FCI Fort Dix), Plaintiff will be directed to identify the appropriate defendants and detail and aver to the factual predicates underlying these claims.
On August 15, 2011, the Clerk received Plaintiff's pleading styled as a § 2241 habeas petition, wherein Plaintiff, a federal inmate then confined at the FCI Fort Dix ("Fort Dix"), asserted "Human Rights Abuse, Eighth Amend[ment] Cruel and Unusual Punishment [by] Denied medication, deliberate indifference, torture mental cruelty; [and being] Imprisoned in violation of 5th, 6th[] and 8th Ame[n]d U.S. Const[itution]." Docket Entry No. 1, at 3 (). In support of that claim, Plaintiff alleged that: (a) he was denied medications prior to his entry of a guilty plea; (b) after his conviction, he had to consume those medications on an empty stomach; (c) that mode of medicating caused him side effects; and (d) the Fort Dix warden did not intervene in that mode of medicating. In addition, he asserted: (a) his displeasure with his housing arrangements (since the Fort Dix cells, designed for eight inmates, housed, allegedly, up to twelve inmates); (b) his exposure to second-hand smoking and concerns with the possibility of becoming sick as a result of being exposed to unidentified bacteria/viruses; and (c) his unhappiness with the prison officers' mode of interaction with the inmates, poor keep of the prison facilities, violence among inmates, etc. See id. at 3-5.
While Plaintiff's allegations, concerns and statements of displeasure did not call for emergent judicial intervention, his claim that he "has been denied his psychiatric medication for 6 months and . . . has not been seen by the medical health staff" for the same period of time, id. at 5, read jointly with his application for temporary injunctive relief, see id. Docket Entry No. 1-2, cautioned that a prompt judicial intervention might have been necessary. Therefore, this Court: (a) liberally construed Plaintiff's pleading as a civil complaint raising conditions of confinement claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); (b) directed the Clerk to terminate the original habeas action and to commence the instant civil matter; (c) granted Plaintiff conditional in forma pauperis status to litigate his civil claims; and (e) directed the Fort Dix warden (i.e., the sole respondent named in the original habeas petition and, thus, the sole entity over whom this Court had immediate in personam jurisdiction) to show cause as to why a preliminary injunction should not issue. See Docket Entry No. 6.1
The warden duly complied. See Docket Entry No. 10. Her response and the attached record indicated that Plaintiff had arrived to Fort Dix on January 27, 2009, and, just forty eight hours later, was evaluated by the prison's Health Services psychologist. During that evaluation, Plaintiff was found psychologically stable and, upon the doctor's notice that Plaintiff suffered of bipolar disorder and had been taking three mental health medications, all in pill form, he was prescribed the very same pills, as well as further psychiatric consultations on a periodic basis. The next day he had an evaluation for chronic care and stated to the evaluating physician that he felt "great."
More than four months passed by, during which Plaintiff was offered and took his mental health pills: always prior to breakfast. On June 2, 2009, he had an evaluation by a psychiatrist. During that evaluation, he verified he was doing fine, taking his pills timely and experiencing no side effects.
Another eight months passed by. On February 2, 2010, he had another evaluation, this time at the Mental Health Clinic. Again, he reported proper consumption of his pills (that weredispensed to - and consumed by - him prior to breakfast) and stated that he had no complaints, concerns or side effects.
Another seven months passed by. On September 1, 2010, Plaintiff had another Mental Health Clinic evaluation. Once again, he stated he was duly taking the pills (dispensed to him prior to breakfast) with no complaints, concerns or side effects.
Two and a half months passed after the September 2010 evaluation. On November 16, 2010, after taking his mental health pills prior to breakfast for twenty one months, Plaintiff informed his chronic care physician that he stopped taking one of those pills because, allegedly, it made him nauseous and sweaty if consumed prior to breakfast. The physician referred him to the Health Services for these nausea and sweating complaints.2
Another five months passed by. In April 2011, while receiving counseling from a pharmacist, Plaintiff stated that he had not been taking any of his mental health pills since November 2010. The pharmacist informed Plaintiff's doctors of that statement, and Plaintiff was called for a visit with his chronic care physician. During that visit, Plaintiff confirmed that he was not taking any mental health pills for six months or so. Heasserted that all his mental health pills had started to make him feel nauseous and began to cause him vomiting unless he could consume food prior to or with those pills.
Since that statement suggested that Plaintiff might have had developed certain side effects triggered by his consumption of pills on an empty stomach, the chronic care doctor offered Plaintiff the opportunity to have his time slot changed from the pre-breakfast period to the at-dinner time. That way, the pills would necessarily be consumed by Plaintiff after both breakfast and lunch (rather than on an empty stomach) and, in addition, his consumption of pills would be followed by a dinner meal.
Plaintiff, however, refused the doctor's offer and stated that he was willing to consume his pills only before going to bed i.e., at 8:00 p.m. or later.3 To justify his demand, Plaintiff asserted that, even if taken with food, all his mental health pills made him feel "tired" and so he wished to ensure that his consumption of pills would not interfere or negatively affect his ability to enjoy his evening hours.4
In light of Plaintiff's express refusal to have his mental health pills dispensed to him at dinner time, the pills remained dispensed to him during the original pre-breakfast period. More than a year passed by, during which Plaintiff was offered his pills at the original pre-breakfast hour.5
On June 23, 2011, a pharmacist visited Plaintiff, who was housed in the Special Housing Unit ("SHU"). Upon Plaintiff's statement that he was firm in his decision to refuse any further mental health medication unless his pills were dispensed to him at his preferred hour of 8:00 p.m. or later, the pharmacist finally discontinued Plaintiff's medication.
Three weeks later, Plaintiff filed his § 2241 petition noted at the outset of this Opinion, i.e., the pleading asserting that he was denied his mental health pills for six months and that he was not seen by any medical staff for the same period of time. The warden, however, responded that "[t]he only denial of medical care [Plaintiff experienced] was self-imposed." Id. at 2.
Plaintiff filed an affidavit conceding that he was refusing to take his mental health pills because they were not dispensed to him at his preferred hour but raised two new, alternative allegations, i.e.: (a) that, during the time he was at the SHU, he experienced an unspecified "serious gastrointestinal problems" and was left unsatisfied with the medication he received; and (b) that, on another date, he had unspecified "great pain and discomfort" and was denied any medication. See Docket Entry No. 11.
Then, Plaintiff filed four follow-up statements. The first qualified the Fort Dix warden as "Nazi" and Plaintiff as a "Jew in a death camp," and - while repeating his claim that he was denied his pills - simultaneously conceded that the pills were indeed available to him, albeit not at his preferred hour of 8:00 p.m.6 See Docket Entry No. 14.
The second statement alleged that Plaintiff's mental health pills were expressly "prescribed" for his consumption at 8:00 p.m. or later. See Docket Entry No. 15. The third statement requested a stay of this matter because of Plaintiff's transfer to FCI Fairton ("Fairton"). See Docket Entries Nos. 17, 22.
Once at Fairton, Plaintiff filed his fourth statement, this time seeking an injunction against the Fairton warden: he alleged that Fairton inmates had to use pre-printed "sender's address" labels on their outgoing mail, and he perceived that rule as a violation of his civil rights. See Docket Entry No. 23.7
After filing those four statements, Plaintiff filed his first amended complaint. See Docket Entry No. 25. He recited his above-detailed claims and added new ones, alleging that: (a) the Fort Dix warden conspired to violate his "Human Rights"; (b) the Fort Dix warden denied him Percocet, a medication generally not distributed in prisons due to...
To continue reading
Request your trial