SALESKY v. BALICKI et al
Filing
43
MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 5/2/2013. (dmr)(n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
LEONARD SALESKY,
Plaintiff,
Civil Action
No. 10-5158 (JBS-KMW)
v.
KAREN BALICKI, et al.,
MEMORANDUM OPINION
Defendants.
SIMANDLE, Chief Judge:
This matter comes before the Court on Plaintiff Leonard
Salesky’s “Motion for Medical Care Urgent.” [Docket Item 37.]
Plaintiff is incarcerated at South Woods State Prison, and he
contests the quality of his medical care.1 Plaintiff’s motion
will be denied because Plaintiff has not shown that he is likely
to prevail on his claim that the prison medical officers have
shown deliberate indifference to his current medical needs,
based on evidence currently available on this record. The Court
finds as follows:
1.
Plaintiff’s motion is dated March 30, 2013; it was
received by the Court and entered on the docket on April 3,
2013. [Docket Item 37.] Plaintiff asserts that he “has been
experiencing the same symptoms that was [sic] diagnosed as
1
This action originated with a previous motion for urgent
medical care [Docket Item 1] that the Plaintiff filed in a
habeas corpus action [Civ. No. 10-4806]. The present Opinion
only addresses Docket Item 37 and does not express a final
determination of this claim which has been presented in the
current motion.
esophageal cancer in 2010 and resulted in the cause of action
for the case at bar . . . .” (Pl. Mot. Medical Care Urgent (“Pl.
Mot.”) at 1.) He claims that he filed a request for medical care
on March 17, 2013 and was seen by a nurse on March 19, 2013.
(Pl. Mot. at 1.) He asserts that the nurse entered his symptoms
in a computer but, as of March 30, 2013, he had not been called
back for an appointment with a nurse practitioner, which is the
next step in the medical process. (Pl. Mot. at 1-2.) He states,
“In view of the need for timely treatment for cancer, plaintiff
is at risk for his life.” (Pl. Mot. at 2.)
2.
The Court issued an Order on April 5, 2013 [Docket
Item 38] ordering Defendants to respond to Plaintiff’s motion
within seven days. Defendants filed a response on April 10, 2013
[Docket Item 39], including a certification from Department of
Corrections Medical Director Ralph Woodward based upon his
review of Plaintiff’s medical records [Docket Item 39-1].
Plaintiff’s records reflect that Plaintiff’s last appointment
with a specialist was on February 20, 2013. (Woodward Cert. ¶
6.) According to the records, Plaintiff requested “clinical sick
call triage” on March 18, 2013.2 (Woodward Cert. ¶ 3.) Plaintiff
was seen by a nurse on March 19, 2013 and by a physician’s
2
Woodward asserts that Plaintiff first filed his request for
medical care on March 18, 2013, not March 17, as Plaintiff
asserts. This factual difference is immaterial to the Court’s
analysis.
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assistant on April 2, 2013. (Woodward Cert. ¶¶ 4, 6.) A heparin
lock flush was ordered, along with several medical tests,
including an upper GI, a comprehensive metabolic panel, complete
blood count with differential, and a cardiac risk profile.
(Woodward Cert. ¶ 7.) Woodward asserts that Plaintiff “will
return to medical for follow-up once the testing is complete.”
(Woodward Cert. ¶ 7.)
3.
On April 17, 2013, Plaintiff filed a “Supplemental to
Motion for Medical Care” [Docket Item 40]. Plaintiff asserts
that “[t]o date there has not been a diagnosis or attempt to
diagnosis [sic] plaintiff’s symptoms.” (Pl. Supplemental to Mot.
for Medical Care (“Pl. Supp.”) at 1.) He claims that “[a]n
endoscope was scheduled and then cancelled” and that he has
“been informed . . . that his case will be handled by the
oncologist at the University Medical Dental New Jersey . . . .”
(Pl. Supp. at 1.) Plaintiff notes that the oncologist is
unavailable to see him “for a minimum of two weeks.” (Pl. Supp.
at 1.) He complains that he “has never met or been examined by
Dr. Ralph Woodward” and that his chemotherapy port was flushed
by a nurse on February 20, 2013, but he did not see a doctor.
(Pl. Supp. at 2.) Plaintiff states that the risk of the “delay
in diagnosis” is “metastasis and tumor growth.” (Pl. Supp. at
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2.) He concludes, “Medical diagnosis and treatment delayed is
medical diagnosis and treatment denied.” (Pl. Supp. at 2.)
4.
Plaintiff’s motion will be considered as a motion for
a temporary restraining order because Plaintiff requests
emergency intervention in the form of a Court order dictating
medical care. “To secure the extraordinary relief of a temporary
restraining order or preliminary injunction, plaintiff must
demonstrate that: (1) he is likely to succeed on the merits; (2)
denial will result in irreparable harm to him; (3) granting the
injunction will not result in irreparable harm to the
defendants; and (4) granting the injunction is in the public
interest.” N. v. Rooney, CIV. 03-1811(JBS), 2003 WL 21432590, at
* 5 (D.N.J. June 18, 2003) (citing Maldonado v. Houstoun, 157
F.3d 179, 184 (3d Cir. 1998)). Plaintiff must show that he is
likely to succeed on all four factors. Opticians Ass'n of Am. v.
Indep. Opticians of Am., 920 F.2d 187, 192 (3d Cir. 1990) (“Only
if the movant produces evidence sufficient to convince the trial
judge that all four factors favor preliminary relief should the
injunction issue.”)
5.
Plaintiff is unlikely to succeed on the merits. Under
the Eighth Amendment, prison officials have a duty to provide
humane conditions of confinement, including adequate medical
care. Farmer v. Brennan, 511 U.S. 825, 832 (1994). An Eighth
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Amendment claim for inadequate medical care must show that
prison officials were deliberately indifferent to the
plaintiff’s medical needs:
a complaint that a physician has been negligent in
diagnosing or treating a medical condition does not
state a valid claim of medical mistreatment under the
Eighth Amendment . . . . In order to state a
cognizable claim, a prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 106 (1976).
6.
In the present case, while it appears that Plaintiff
may have serious medical problems, there is no indication that
prison officials are showing deliberate indifference to those
problems. Plaintiff was seen by a nurse within one or two days
of making his initial request for medical care, he was seen by a
physician’s assistant two weeks after his first appointment, and
multiple tests have been ordered. He was scheduled to see an
oncologist at UMDNJ as soon as an appointment could be obtained.
Under the realities of the health care system, it is not unusual
that such consultations are unavailable for several weeks; such
treatment is neither cruel nor unusual. Prison medical officers
are attending to Plaintiff and, at the present time, there is no
indication of deliberate indifference.
7.
Based on the information presently before the Court,
Plaintiff is unlikely to succeed on the merits and, therefore,
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he has not satisfied the first factor in the temporary
restraining order analysis. Because Plaintiff must satisfy all
four factors to obtain relief, the Court will deny Plaintiff’s
motion without prejudice. The accompanying Order will be
entered.
May 2, 2013
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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