BATIZ v. FEDERAL CORRECTIONS INSTITUTION, FORT DIX, NJ et al

Filing 30

OPINION. Signed by Judge Robert B. Kugler on 12/12/2011. (TH, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Plaintiff,
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v.
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MANUEL CALAGUIO, et al.,
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Defendants.
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HERIBERTO BATIZ,

Civil Action No. 09-2849 (RBK)

O P I N I O N

APPEARANCES:
Heriberto Batiz, Plaintiff, Pro Se
# 14875-014
MDC Brooklyn
P.O. Box 329002
Brooklyn, NY 11232
Karen H. Shelton
Assistant U.S. Attorney
Office of the U.S. Attorney
402 East State Street
Trenton, NJ 08608
Attorney for Defendants
KUGLER, District Judge
The remaining defendants in this matter, Calaguio,
Syjontian, Patel and Turner-Foster, (hereinafter the “medical
defendants”) have filed a Motion for Summary Judgment (docket
entry 29).

Plaintiff has not opposed the motion.

The Court has

reviewed the motion and decided it without oral argument,
pursuant to Federal Rule of Civil Procedure 78.

For the reasons that follow, the Court will grant the
medical defendants’ motion.
BACKGROUND
Plaintiff’s complaint, requesting damages pursuant to Bivens
v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S.
388 (1971), was submitted to the Court on June 11, 2009.
Plaintiff states that on October 14, 2008, while housed at the
Federal Correctional Institution (FCI) at Fort Dix, New Jersey,
he “seriously wrenched his back when lifting a computer, weighing
about 30 pounds, at his job site, Federal Prison Industries, Inc.
(FPI).”

Plaintiff’s complaint describes the treatment he

received for the injuries.

Plaintiff complains that he had an

MRI but was not able to discuss the results with a doctor, was
not permitted to have surgery, and was not permitted to have
physical therapy.

Also, Plaintiff complains that he had a prior

condition that should have been made aware to the Federal Prison
Industries, which made him dizzy when on medication, further
exacerbating his injuries.

Also, sick calls were ignored in

November of 2008, and despite his injuries worsening, he has been
denied treatment.

Plaintiff noted that he feared becoming

disabled, and asked for monetary damages.
On August 5, 2009, this Court ordered summonses issued.
Defendants filed a motion to dismiss, in lieu of an answer.

On

September 18, 2010, the motion was granted as to defendants FCI,
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FPI, James, Meyers, Eobstel, Grandolsky, and Spaulding.
motion was denied as to the medical defendants.

The

On October 7,

2010, the medical defendants filed an answer to the complaint,
and on March 28, 2011, filed the instant motion for summary
judgment.
The medical defendants’ motion for summary judgment asserts
that Plaintiff was treated for his injuries, and that the
defendants were not deliberately indifferent to his medical needs
in violation of the Eighth Amendment.

The Declaration of Turner-

Foster, attached to the motion, outlines the treatment Plaintiff
received, and includes Plaintiff’s medical records as exhibits.
Plaintiff has not opposed the motion, or filed any other
papers on the docket of this case.

In fact, according to the

Bureau of Prisons’ inmate locator website, it appears that
Plaintiff was released from custody in July of 2011.

He has not

filed any address change with the Clerk of the Court, as required
by the Local Civil Rules.

As this motion was filed in March of

2011, well before Plaintiff was released, and the medical
defendants filed a certificate of service evidencing service on
Plaintiff, this Court assumes that Plaintiff received the motion
prior to his release.

3

DISCUSSION
A.

Standard of Review for Defendants’ Motion for Summary
Judgment.
Summary judgment is appropriate where the Court is satisfied

that “there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330
(1986).

A genuine issue of material fact exists only if the

evidence is such that a reasonable jury could find for the
nonmoving party.

See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).

When the Court weighs the evidence presented by

the parties, “[t]he evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his favor.”
Id. at 255.
The burden of establishing the nonexistence of a “genuine
issue” is on the party moving for summary judgment.

See Aman v.

Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996).
The moving party may satisfy its burden either by “produc[ing]
evidence showing the absence of a genuine issue of material fact”
or by “‘showing’—that is, pointing out to the district court—that
there is an absence of evidence to support the nonmoving party's
case.”

Celotex, 477 U.S. at 325.

Once the moving party satisfies this initial burden, the
nonmoving party must “set out specific facts showing a genuine
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issue for trial.”

Fed. R. Civ. P. 56(e).

To do so, the

nonmoving party must “do more than simply show that there is some
metaphysical doubt as to the material facts.”

Matsushida Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Rather, to survive summary judgment, the nonmoving party must
“make a showing sufficient to establish the existence of [every]
element essential to that party's case, and on which that party
will bear the burden of proof at trial.”
322.

Celotex, 477 U.S. at

Furthermore, “[w]hen opposing summary judgment, the

nonmovant may not rest upon mere allegations, but rather must
‘identify those facts of record which would contradict the facts
identified by the movant.’”

Corliss v. Varner, 247 F. App'x 353,

354 (3d Cir. 2007) (quoting Port Auth. of N.Y. & N.J. v.
Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002)).
In deciding the merits of a party's motion for summary
judgment, the court's role is not to evaluate the evidence and
decide the truth of the matter, but to determine whether there is
a genuine issue for trial.

See Anderson, 477 U.S. at 249.

Credibility determinations are the province of the factfinder,
not the district court.

See BMW, Inc. v. BMW of N. Am., Inc.,

974 F.2d 1358, 1363 (3d Cir. 1992).
The Court is mindful that it must carefully review the
unopposed record to see if the medical defendants are entitled to
judgment as a matter of law, notwithstanding Plaintiff's silence
5

See Anchorage Assoc. v. Virgin Islands Bd. of Tax Rev., 922 F.2d
168, 175 (3d Cir. 1990).
“if appropriate.”
B.

Summary judgment can only be granted

Fed. R. Civ. P. 56(e).

The Medical Defendants’ Motion Must Be Granted.
1.

Eighth Amendment Medical Care Standard

The Eighth Amendment to the United States Constitution
prohibits the infliction of “cruel and unusual punishments” on
those convicted of crimes.
344–46 (1981).

See Rhodes v. Chapman, 452 U.S. 337,

This proscription against cruel and unusual

punishment requires that prison officials provide inmates with
adequate medical care.
103–04 (1976).

See Estelle v. Gamble, 429 U.S. 97,

In order to set forth a cognizable claim for a

violation of his right to adequate medical care, an inmate must
allege: (1) a serious medical need; and (2) behavior on the part
of prison officials that constitutes deliberate indifference to
that need.

See id. at 106.

To satisfy the first prong of the Estelle inquiry, the
inmate must demonstrate that his medical needs are serious.
“Because society does not expect that prisoners will have
unqualified access to health care, deliberate indifference to
medical needs amounts to an Eighth Amendment violation only if
those needs are ‘serious.’”
(1992).

Hudson v. McMillian, 503 U.S. 1, 9

Serious medical needs include those that have been

diagnosed by a physician as requiring treatment or that are so
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obvious that a lay person would recognize the necessity for a
doctor's attention, and those conditions which, if untreated,
would result in lifelong handicap or permanent loss.

See

Monmouth County Correctional Institutional Inmates v. Lanzaro,
834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006
(1988).
The second element of the Estelle test requires an inmate to
show that prison officials acted with deliberate indifference to
his serious medical need.

“Deliberate indifference” is more than

mere malpractice or negligence; it is a state of mind equivalent
to reckless disregard of a known risk of harm.
Brennan, 511 U.S. 825, 837–38 (1994).

See Farmer v.

Furthermore, a prisoner's

subjective dissatisfaction with his medical care does not in
itself indicate deliberate indifference.

See Andrews v. Camden

County, 95 F. Supp.2d 217, 228 (D.N.J. 2000).
Similarly, “mere disagreements over medical judgment do not
state Eighth Amendment claims.”
110 (3d Cir. 1990).

White v. Napoleon, 897 F.2d 103,

“Courts will disavow any attempt to

second-guess the propriety or adequacy of a particular course of
treatment ... [which] remains a question of sound professional
judgment.

Implicit in this deference to prison medical

authorities is the assumption that such informed judgment has, in
fact, been made.”

Inmates of Allegheny County Jail v. Pierce,

612 F.2d 754, 762 (3d Cir. 1979) (internal quotation and citation
7

omitted) (emphasis added).

Even if a doctor's judgment

concerning the proper course of a prisoner's treatment ultimately
is shown to be mistaken, at most what would be proved is medical
malpractice and not an Eighth Amendment violation.

See Estelle,

429 U.S. at 105–06; White, 897 F.2d at 110.
“Where prison authorities deny reasonable requests for
medical treatment, however, and such denial exposes the inmate
‘to undue suffering or the threat of tangible residual injury,’
deliberate indifference is manifest.

Similarly, where ‘knowledge

of the need for medical care [is accompanied by the] ...
intentional refusal to provide that care,’ the deliberate
indifference standard has been met....

Finally, deliberate

indifference is demonstrated ‘[w]hen ... prison authorities
prevent an inmate from receiving recommended treatment for
serious medical needs or deny access to a physician capable of
evaluating the need for such treatment.”
346 (citations omitted).

Lanzaro, 834 F.2d at

“Short of absolute denial, if necessary

medical treatment [i]s ... delayed for non-medical reasons, a
case of deliberate indifference has been made out.”
(citations omitted).

Id.

“Deliberate indifference is also evident

where prison officials erect arbitrary and burdensome procedures
that ‘result[ ] in interminable delays and outright denials of
medical care to suffering inmates.’”
omitted).
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Id. at 347 (citation

2.

Plaintiff’s Treatment

The record provided to this Court evidences that the
Plaintiff was extensively treated for his injuries, and does not
demonstrate deliberate indifference on the part of the medical
defendants.
It appears from the record that after transfer to Fort Dix
on January 29, 2008, Plaintiff had a medical screening, and
reported a history of lower back pain. He was prescribed pain
medication.

See Defendants’ Brief (“Defs. Br.”), p.3; Turner-

Foster Declaration, ¶ 7.
On October 14, 2008, while designated at FCI Fort Dix,
Batiz reported an injury to Health Services staff and complained
of severe pain in his lower back.

Def. Br., p. 3-4; Id. at ¶ 8.

He was provided with an injection of Nubain, a strong pain
medication, and was advised to follow-up as needed.

Defs. Br.,

p. 4; Id. ¶ 9.
On October 15, 2008, the next day, a follow-up encounter was
performed by MLP Calaguio.

Batiz reported a history of lower

back pain and claimed his sagging mattress exacerbates the issue.
He was advised to apply a warm compress on and off every 20
minutes, or to use Bengay ointment from Commissary.
instructed to do warm-up exercises.
and topical cream for pain.

He was also

Batiz was provided Tylenol

He was also advised that it was too

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soon to receive a second Nubain injection.

Defs. Br., p. 4; Id.

at ¶ 9.
On October 17, 2008, two days after Plaintiff reported his
injury, MLP Syjongtian responded to an emergency call in Unit
5711.

Batiz was laying on the floor and complained of extreme

back pain.

He indicated that his leg gave out due to back pain

and he fell to the floor.

Batiz was provided a Nubain injection

for the immediate pain, and a cane to assist him in ambulating.
Batiz was informed to follow-up at Sick Call, or to report
immediately if his condition worsened.

Defs. Br., pp. 4-5; Id.

at ¶ 10.
On October 27, 2008, Batiz reported to Sick Call and
was seen by MLP Synjongtian.

He requested an MRI and a re-fill

of his Zantac medication, prescribed for acid reflux.

The MLP

requested an MRI of the Spine and Pelvis due to the history of
lower back pain and the new injury.

Defs. Br., p. 5; Id. at ¶

11.
Three days later, on October 30, 2008, Batiz reported to
Sick Call.

This time he was seen by MLP Elias and complained of

severe lower back pain.

He stated he was treated with Tylenol

and Nubain, but they did not help.
was already requested.

MLP Elias noted that an MRI

Batiz was advised to apply a warm

compress and Bengay ointment twice daily.

He was prescribed

Indomethacin, a non-steroidal anti-inflammatory drug (NSAID), for
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his pain.

He was also put in Convalescent Status, also referred

to as a "work idle."

Defs. Br., pp. 5-6; Id. at ¶ 12.

A week later, the Utilization Review Committee (URC),
approved the MRI for Batiz on November 7, 2008.
be completed within three months.

The MRI was to

Defs. Br., p. 6; Id. at ¶ 13.

On November 12, 2008, Batiz again went to Sick Call and
was treated by MLP Claguio.

Batiz complained of lower back pain,

and stated it was worse with his sagging mattress.

He stated he

was relieved by the NSAID or the injectable Nubain.
prescribed Ibuprofen for pain.

He was

The MLP placed a note in the file

suggesting an evaluation by an Orthopedic doctor, if the results
of the x-ray and MRI prove degenerative changes.

He also

indicated that an NSAID, injectable Nubain, or Ketorolac may be
prescribed for short-term extreme pain.

Defs. Br., p. 6; Id. at

¶ 14.
On November 17, 2008, Batiz received an MRI of the
Pelvis and Lumbar Spine.
pelvis.

The results were unremarkable for the

The Lumbar Spine showed degenerative disc changes in the

L4-5 and L5-S1.

He had slight disc bulging, and posterior facet

hypertrophy at L5-S1.

The results indicated that Batiz has

osteoarthritis (thickening of the ligaments).

He did not have

spinal cord stenosis (narrowed spinal cord) and did not have

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compression of the nerves, which , in Dr. Turner-Foster’s
opinion, would indicate the need for possible surgical
intervention.

Defs. Br., pp. 6-7; Id. at ¶ 15.

On December 1, 2008, Batiz was evaluated by his Primary
Care Provider at the time, Dr. Patel.

Batiz indicated he wanted

a brand name medication and requested a work idle.
noted Batiz ambulated with a cane.

The doctor

He was able to get on the

examination table without help and mediocre pain.

Batiz was

advised to use a warm compress and Bengay twice daily.

Dr. Patel

discontinued the Ibuprofen and prescribed Codeine and Piroxicam
daily.

Dr. Patel also provided Batiz a work idle.

was instructed to perform exercises.

Lastly, he

Defs. Br., p. 7; Id. at ¶

16.
On December 10, 2008, Batiz attended Sick Call and was
seen by MLP Syjongtian.

Batiz reported that the medication

prescribed by Dr. Patel did not help, and he wanted more "potent"
medication.

Doctor Patel reviewed his medication and

discontinued the Codeine, and prescribed Oxycodone.

Defs. Br.,

pp. 7-8; Id. at ¶ 17.
On January 12, 2009, Batiz did not appear for his Sick
Call appointment.

Defs. Br., p. 8; Id. at ¶ 18.

On January 14,

2009, Batiz went to Sick Call and was seen by Physician Assistant
Gostowski.

Batiz requested a refill of Percocet and was advised

that the MRI results did not justify narcotics (such as Percocet
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and Oxycodone) because those medications are typically used to
treat acute conditions.

He was instructed that exercise would

build his strength and flexibility.

He was also provided with a

realistic time-frame for improvement of his condition.

Defs.

Br., p. 8; Id. at ¶ 19.
On January 16, 2009, Batiz reported to Health Services
due to an alleged injury.

He claimed he slipped down the stairs

in his Unit due to his new medication being too strong.

MLP

Calaguio noted Batiz was walking the same as the week prior, had
no signs of bruising, redness, and no skin discoloration.

The

MLP informed Batiz to use a warm compress and to take the Keppra
at pill line as prescribed.

He also instructed Batiz to lay down

when necessary and to follow-up at Sick Call.

Defs. Br., p. 8;

Id. at ¶ 20.
On January 27, 2009, Batiz reported to Sick Call and
was seen by MLP Calaguio.
dizzy.

He reported that the Keppra made him

He stated that he discontinued the mediation because of

the side-effects, and that his back was in pain.

The MLP renewed

Batiz's prescription for Piroxicam for pain, and prescribed him
Meclizine, for his dizziness.

Defs. Br., p. 9; Id. at ¶ 21.

On February 18, 2009, an Administrative Note from the
Chief Pharmacist was placed in Batiz's medical records.

Batiz

reported that the MLP agreed to decrease the dosage of Keppra,
however, the medical records did not indicate this.
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Pharmacist

decreased the dosage for Keppra and referred Batiz to the MLP for
follow-up.

Defs. Br., p. 9; Id. at ¶ 22.

On February 23, 2009, Batiz was seen at Sick Call by PA
Gostkowski.

Batiz reported that he was given "seizure"

medication to treat his complaint of pain.

Batiz was instructed

that medications such as Keppra can be used to treat pain, in
addition to their other uses.

Batiz became loud and belligerent,

and left the office before the examination could be completed.
Defs. Br., p. 9; Id. at ¶ 23.
Dr. Turner-Foster examined Batiz on March 3, 2009 as
part of his Chronic Care Clinic visit.

He reported back pain for

five months and complained of lower back pain that radiated down
his right leg.
needles.

He admitted to the sensation of burning pins and

Dr. Turner-Foster noted that these symptoms were

consistent with compression of the sciatic nerve by a spasmed
muscle.

The results of the November 2008 MRI were again reviewed

with Batiz.

The treatment plan was to discontinue Keppra and

Piroxicam because of the reported dizziness and bleeding
problems.

Dr. Turner-Foster ordered a trial of Topamax.

Batiz

was instructed that if a higher dose of Topamax was necessary, to
report this to the pharmacist at pill line.
exercise was reiterated.

The importance of

Defs. Br., p. 10; Id. at ¶ 24.

On March 19, 2009 another Administrative Note was
placed in Batiz's medical record by the Chief Pharmacist.
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Batiz

reported to the Pharmacist that Topamax at 25 mg was insufficient
to control the pain.

The Pharmacist sent an e-mail to the

Doctor, who prescribed Topamax, 50 mg, for pill line.

Defs. Br.,

p. 10; Id. at ¶ 25.
On July 20, 2009, Batiz reported to Sick Call and was
treated by PA Esposito.

Batiz reported no extreme pain.

He

asked if there was any other medication to prescribe for his
lower back pain.

The PA indicated there may be other

prescriptions he could purchase through the Commissary.

Defs.

Br., p. 10; Id. at ¶ 26.
On July 27, 2009, Batiz again reported to Sick Call and
was treated by MLP Gostowski.
was ineffective.

Batiz stated his pain medication

It was noted he was still prescribed Topamax.

The MLP indicated Batiz needed to follow-up with his Primary Care
Physician.

He also indicated he would e-mail the Pharmacy in

order for him to be reviewed for the Pain Management Clinic.
Defs. Br., p. 11; Id. at ¶ 27.
An Administrative Note was entered in the file on
August 24, 2009 by PA Esposito.
counseling and care.
extensively.

He indicated that Batiz refused

PA Esposito reviewed Batiz's MRI with him

Batiz did not want to listen, and only asked for

medication repeatedly.

The note indicated Batiz believed Health

Services was refusing him medical care and he threatened to file
administrative remedies.

Defs. Br., p. 11; Id. at ¶ 28.
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On September 8, 2009, Batiz was evaluated by Dr. Lopez
De Lasalle, the Clinical Director at FCI Fort Dix, for his
Chronic Care Clinic appointment.

At his evaluation, Batiz

reported that he was disabled prior to being incarcerated due to
mental health issues.
lower back.

He requested pain medication for his

Batiz refused the Topamax, 50 mg, so Dr. Lopez De

Lasalle discontinued that medication.

Instead, he was prescribed

Amitriptyline, 25 mg, for neuroliptic pain management, to be
taken at pill line.

Defs. Br., p. 11; Id. at ¶ 29.

Dr. Turner-Foster states in her Declaration that there was
no indication from the November 2008 MRI, or from the previous
MRI and x-rays, to refer Batiz to an Orthopedic Surgeon or
Neurosurgeon.

In order to refer an individual to either

specialist, the MRI must show that there is an issue to
surgically correct.

As previously indicated, the November 2008

MRI showed no compression on the nerves.

Individuals with

Batiz's condition are typically treated medically, with pain
medications, and not surgically.

She opines that Batiz was

treated appropriately with pain medication from the Bureau of
Prisons’ approved formulary of medication.
at ¶ 31.

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Defs. Br., p. 12; Id.

3.

The Medical Defendants Were Not Deliberately
Indifferent.

As demonstrated by the records provided in this case,
Plaintiff’s injury was treated extensively by the medical
defendants.

At best, Plaintiff disagrees with the treatment

course set forth by the medical defendants.

As noted, however,

such claims of disagreement in treatment, or negligence, or
medical malpractice, do not rise to the level of an Eighth
Amendment violation.
Here, the medical record as a whole does not support an
Eighth Amendment violation.

Plaintiff was placed on “work idle,”

and was given a cane to help his pain.

He was seen regularly and

repeatedly at sick call, was given an MRI, and was treated with
medication and informed about the importance of exercise.

While

this Court sympathizes with Plaintiff’s serious medical
condition, it is clear that the medical defendants were not
deliberately indifferent to his medical needs.
CONCLUSION
For the foregoing reasons, the medical defendants’ Motion
for Summary Judgment is granted.
An appropriate Order follows.

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
Dated: December 12, 2011
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