White v. Napoleon, 89-5523
| Citation | 897 F.2d 103 |
| Decision Date | 23 February 1990 |
| Docket Number | No. 89-5523,89-5523 |
| Parties | Norwood L. WHITE, Individually and on Behalf of Others Similarly Situated, v. John J. NAPOLEON. Appeal of Norwood L. WHITE, Daniel Sabb, Emilio Baez Nazario and Calvin Merle Rogers. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Fredric J. Gross (argued), Mount Ephraim, N.J., for appellants.
Ronald L. Bollheimer (argued), Deputy Atty. Gen., Peter N. Perretti, Jr., Atty. Gen. of New Jersey, Trenton, N.J., for appellee.
Before BECKER, COWEN and SEITZ, Circuit Judges.
Norwood L. White, Emilio Baez Nazario, Calvin Merle Rogers and Daniel Sabb appeal from an order of the district court dismissing their complaint pursuant to Fed.R.Civ.P. 12(b)(6). We will reverse in part and affirm in part.
White, Nazario, Rogers and Sabb are prisoners within the New Jersey prison system. On October 18, 1988, White filed a complaint against John J. Napoleon, a prison physician, on behalf of himself and others similarly situated. The complaint alleged that Dr. Napoleon had mistreated White and other prisoners so as to violate the Eighth Amendment, the Fourteenth Amendment and various provisions of state law. White sought to enjoin Dr. Napoleon from continuing to treat prisoners in the New Jersey prison system and to obtain damages for injuries suffered as a result of Dr. Napoleon's conduct. The action was predicated on 42 U.S.C. Sec. 1983 and provisions of state law.
White moved for preliminary injunctive relief and for certification of the plaintiff class. Dr. Napoleon moved for summary judgment. The district court denied preliminary relief and dismissed without prejudice the motions for class certification and summary judgment.
Thereafter, White filed an amended complaint. It reiterated White's allegations and added new allegations by additional plaintiffs Nazario, Rogers and Sabb. The amended complaint is extremely factually detailed, containing 162 paragraphs.
Dr. Napoleon moved to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). By order dated June 7, 1989, the district court granted the motion to dismiss. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 (1982).
Since Dr. Napoleon filed no answer and the dismissal was solely on the basis of the facts alleged, we look only to the facts alleged by appellants to determine whether dismissal was warranted. The allegations of the amended complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the appellants. Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir.1987).
White alleges he has suffered from a chronic, painful ear infection since 1977. Prison physicians first attempted to treat the infection with ear drops, antibiotics and frequent cleaning. None of the treatments was effective and those that required putting liquid in the ear caused extreme pain. Eventually, the Department of Corrections retained a specialist, who instructed White to avoid getting water in his ears while taking showers. When White experienced itching, a rash or flaking tissue, White would be given Valisone ointment. This method successfully controlled White's ear infection for years.
When White was transferred to Bayside State Prison, Dr. Napoleon conducted an intake interview. White explained that the Valisone he had been given at his previous place of incarceration had been confiscated. He asked that the doctor leave standing orders to treat White's ear with Valisone. Without examining White or reviewing his medical records, Dr. Napoleon said he would not let plaintiff have Valisone and that "they only gave it to you there to shut you up," or words to that effect. After that, White's ear infection became active and uncontrolled, causing him pain and loss of hearing.
Dr. Napoleon continued refusing to administer Valisone. Instead, he insisted on trying each of the treatments that had proven unsuccessful and painful before. When White protested that his prior doctors had tried these methods without success, Dr. Napoleon responded that he would see for himself. He continued to order frequent washing of White's ear, although it caused White great pain and was contraindicated by his prior medical history.
On one occasion, Dr. Napoleon said he was going to treat White's ear with Debrox. Debrox is a mild cleansing solution, but White, who is allergic to penicillin, feared Debrox might contain penicillin and asked to read the label. The doctor explained the solution would clean the ear and refused to let White know the ingredients. Dr. Napoleon stated that White would have to accept treatment with Debrox or receive no treatment at all. Because Dr. Napoleon refused to let him know the ingredients, White refused to be treated with Debrox.
Dr. Napoleon filed disciplinary charges against White for refusing to cooperate in a prescribed course of treatment. White was acquitted of the charges after a prison courtline hearing. 1
As time passed, the hearing loss and pain in his ear increased, so that White eventually agreed to treatment with Debrox. White alleges that Dr. Napoleon left the solution in White's ear for forty minutes, far longer than sound medical practice contemplates, for the express purpose of inflicting pain. The treatment was, in fact, extremely painful. The amended complaint further alleges that Dr. Napoleon refuses to allow White to see a specialist in order to continue to inflict pain and conceal his own misconduct.
Emilio Baez Nazario has suffered epileptic seizures since 1970. Until he came under Dr. Napoleon's care, he received Epitol, which limited the frequency of seizures to at most three times in a year. When he was transferred to Bayside State Prison, Dr. Napoleon told Nazario that the prison did not use Epitol and prescribed Dilantin instead.
In the following nine months, Nazario alleges he suffered dozens of seizures, many far more severe than those he experienced with Epitol. Nazario also alleges that Dilantin gave him a distressing narcotic high, made him nervous and caused his hands to shake. Nazario reported these unsatisfactory results to Dr. Napoleon and requested Epitol. Dr. Napoleon refused, continued Nazario on Dilantin and in addition prescribed phenobarbital. Nazario continues to have frequent epileptic seizures and Dr. Napoleon continues to refuse to provide Epitol. Nazario alleges that Dr. Napoleon deliberately refuses to treat him with Epitol, knowingly causing him needless suffering from seizures and the resultant pain and risk of physical injury.
Calvin Merle Rogers suffers from recurrent growths just below the skin. The growths sometimes intrude into muscle tissue, causing pain during flexion. In 1986, one of the growths was surgically removed from his back because of the pain it was causing.
Since Rogers arrived at Bayside State Prison, he has complained to Dr. Napoleon about these growths. In particular, Rogers has one growth near the base of his spine that makes prolonged sitting painful. Another growth in his arm causes Rogers pain at his work assignment, which involves heavy lifting.
The growths cause at most a slight swelling of the skin, and consequently are not obvious to the eye. The growths, however, are readily apparent upon palpation. Rogers alleges that Dr. Napoleon insists he cannot see the growths and refuses to palpate the affected areas. Consequently Dr. Napoleon refuses to give Rogers any treatment for the growths and will not order a change to work that does not involve lifting. Rogers alleges that Dr. Napoleon's actions reflect a deliberate, intentional and sadistic refusal to treat his serious medical needs.
Rogers also has numerous skin blemishes, some of which change color from red to brown over time. He is afraid they may be cancerous or pre-cancerous. Rogers asked Dr. Napoleon to examine the blemishes. Without anything more than a very casual look, Dr. Napoleon said, "I don't do cosmetic surgery," or words to that effect. Dr. Napoleon's actions, Rogers alleges, have caused him to suffer emotional distress, prevented him from making informed decisions about his own medical welfare and may put him at increased risk of cancer.
Daniel Sabb has a history of carbunculosis on his buttocks and legs. The condition first appeared in late 1985, when he was sent to St. Francis Hospital in Trenton to have a severe boil lanced. During the next year and one half, Sabb's condition grew worse and the carbuncles spread. Treatment by the prison dermatologist, including antibiotics, did not help. In October 1987, Sabb spent one month at St. Francis Hospital's State Prison Ward, where he was tested and had more than fifty carbuncles lanced. St. Francis physicians concluded that Sabb had an exotic condition and obtained permission to have him transferred to the hospital at the University of Medicine and Dentistry in Newark, New Jersey. There an immunologist, Dr. Beilory, treated Sabb's condition with Tolectin and Maalox, the latter a precaution against the substantial risk of peptic ulcer associated with Tolectin. Beilory's prescription specified "no substitution" for Tolectin.
Sabb was returned to Bayside, then transferred to a halfway house and then Northern State Prison. At each of the latter institutions, he received Tolectin and Maalox. Thereafter, he was returned to Bayside State Prison and came under Dr. Napoleon's care. He sought Tolectin from Dr. Napoleon and explained the history of his problem and its treatment. The doctor told Sabb that Tolectin was not available and would not be ordered. Notwithstanding the specialist Beilory's "no substitution" order, Dr. Napoleon nevertheless substituted a different medication, Anaprox.
On January 6, 1989, Sabb saw Dr. Beilory for a monthly visit and explained that Dr. Napoleon was substituting Anaprox for Tolectin. Dr. Beilory called the Bayside infirmary,...
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