GAINES v. BUSNARDO et al

Filing 141

OPINION FILED. Signed by Judge Jerome B. Simandle on 6/5/17. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

HONORABLE JEROME B. SIMANDLE

HERMAN GAINES,
Plaintiff,

Civil Action
No. 13-6566 (JBS-JS)

v.
BRAD BUSNARDO, et al.,

OPINION
Defendants.

APPEARANCES:
HERMAN GAINES, Plaintiff Pro Se
429989/233523C
New Jersey State Prison
P.O. BOX 861
Trenton, New Jersey 08625
THOMAS B. REYNOLDS, ESQ.
REYNOLDS & HORN, P.C.
750 Route 73 South, Suite 202A
Marlton, New Jersey 08053
Attorney for Defendants Brad Busnardo and Mary Ellen Green
SIMANDLE, District Judge:
INTRODUCTION
This matter comes before the Court on Defendants Brad
Busnardo and Mary Ellen Green’s renewed motion for summary
judgment [Docket Item 128]. This Court previously denied
Defendants’ first motion for summary judgment [Docket Item 33],
but Defendants contend that an intervening change in the law
governing the standard applicable for an inmate’s claim under

the Eighth Amendment based on inadequate medical care compels
the opposite conclusion. Under this circumstance, Defendants may
properly renew their motion. For the reasons that follow, the
Court agrees and will grant Defendants’ renewed motion for
summary judgment.
BACKGROUND
Plaintiff argues that on September 10, 2011, he suffered a
ruptured Achilles tendon while he was a prisoner at the South
Woods State Prison (“SWSP”). He states that he informed
Defendants Busnardo and Green that he “felt a pop” at the back
of his left ankle while playing basketball (see Docket Item 18,
Plaintiff’s Pretrial Memorandum). Nurse Busnardo and Nurse Green
are both Registered Nurses employed at SWSP. Nurse Busnardo
first examined Plaintiff at the medical unit on Saturday,
September 10 at approximately 11:00 a.m., moments after his
basketball injury. Plaintiff claims he was in pain and his ankle
was swollen. Nurse Busnardo gave Plaintiff Motrin and an ACE
bandage. Plaintiff notes that while Defendants claim they gave
him a “brace,” the actual item given to him was an ankle
“sleeve,” that did not provide enough support for him while
walking on a ruptured tendon. (Id.) Plaintiff argues that
Defendants, “to avoid the workload” deliberately
mischaracterized his injury as a sprained ankle; however,
Plaintiff believes that Defendants knew that the injury was much
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more serious than that. Plaintiff contends that he should be
permitted to present his case to a jury to prove that Defendants
“lied.” (Id.) A few days after his injury, Mr. Gaines was given
crutches. He states in his pretrial memorandum that he wanted to
procure an expert to “deliver testimony regarding whether
Motrin, and ACE bandage, and an ankle sleeve (brace) can address
the serious medical need of walking on a ruptured Achilles
tendon and also to testify as to the physical ramifications and
what occurs when a person bears his weight on a ruptured
tendon.” (Id.)
The contemporaneous medical record (Exhibits A-I to
Certification of Thomas B. Reynolds (“Reynolds Cert.”) in
Support of Defendants’ Renewed Motion for Summary Judgment)
reveals the timing and type of medical attention given to Mr.
Gaines at the medical facility. Gaines told Busnardo he had left
ankle pain from playing basketball when he “twisted it the wrong
way.” (Id.) On September 10, Nurse Busnardo examined Gaines’s
ankle and foot and found that Gaines was “able to perform ROM
[range of motion] activities but with minor pain.” (Id.) Nurse
Busnardo stated: “No obvious deformities. No notable swelling
seen.” (Id.) The situation was assessed as a “Medical Emergency
for sprained ankle.” (Id.) The record on September 10 also
reflects that Mr. Gaines “refused [M]otrin and ice,” and that he
“just wants ACE wrap,” which Nurse Busnardo applied. (Id.) He
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instructed Gaines to “return to medical if [symptoms] worsen or
do not improve.” (Id.)
The condition did not improve and Gaines submitted a
written health services request form two days later on September
12. (Reynolds Cert., Ex. B.) Gaines continued to experience
ankle pain, was “triaged” September 13, 2011, and was seen in
the medical facility on September 14, 2011 by Defendant Nurse
Green. (Id.) Nurse Green stepped up the medical care,
prescribing a five-day supply to Motrin and replacing the ACE
bandage with an ankle brace. (Reynolds Cert., Ex. C.) Nurse
Green scheduled Gaines for a doctor’s care visit and she excused
Gaines from performing work or recreational activities. (Id.)
Also, on September 15, a physical therapist provided
crutches to Mr. Gaines, which Nurse Green documented on a
medical note on September 16. (Reynolds Cert., Ex. D.) Mr.
Gaines said he was walking well with the crutches and was aware
that he would shortly be seeing the doctor. (Id.)
Next, on Tuesday, September 20, Physician Assistant Avynne
Hester evaluated Mr. Gaines and noted he was unable to bear
weight on his left ankle, and ordered an ankle x-ray and MRI, to
rule out an Achilles tendon injury which she suspected.
(Reynolds Cert., Ex. E.) She examined his left lower extremity
and noted “no calf pain or gross deformity, pain with plantar
flexion, unable to stand on tiptoes, tenderness to palpitation
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of Achilles tendon.” (Id.) Restrictions on his work and
recreation were continued including a restriction to ground
floor housing only. (Id.)
The radiological studies were completed and were consistent
with an Achilles tendon rupture, and Mr. Gaines was therefore
evaluated by an orthopedic specialist, Dr. Gerald Packman.
(Reynolds Cert., Ex. F.) Dr. Packman saw Mr. Gaines at his
office on October 3, 2011. (Id.) Dr. Packman conducted tests and
found “a palpable defect at the Achilles tendon [a] little bit
above the insertion into the calcanei,” and also administered a
“Thompson test” that was “positive for an Achilles rupture on
the left.” (Id.) He recommended surgery to be done “in no more
than about 3 weeks from now.” (Id.) Mr. Gaines consented to the
surgery (id.), and Dr. Packman would “get him scheduled as soon
as possible. (Id.) He prescribed Tylenol No. 3 or tramadol as
pain medication. (Id.)
The prison’s arrangements for the surgical repair are
documented on October 5, and the surgery occurred on October 19,
2011. (Reynolds Cert., Ex. G.) Dr. Packman performed successful
surgery to repair the left Achilles tendon, and Mr. Gaines
received follow-up care by Dr. Packman and orthopedic specialist
Dr. W. Scott Williams (Reynolds Cert., Ex. H) on November 1,
2011 and November 15, 2011. (Id.) Dr. Packman was satisfied with
Gaines’s post-surgical status as he inspected the incision wound
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and changed his temporary cast on November 1, and Dr. Williams
removed the cast, repositioned the foot, and applied a new short
leg cast on November 15. (Id.) The short leg cast was removed on
February 14, 2012, and Dr. Williams cleared Gaines to begin
physical therapy, including weight bearing as tolerated with
crutches. (Id.) Although he missed several physical therapy
sessions at the prison, his physical therapy with Robert Capri,
PT, continued until April 3, 2012, when Gaines was discharged
from therapy. (Reynolds Cert., Ex. H.) There is no evidence that
the delay in diagnosing an Achilles tendon rupture complicated
the surgical repair or Gaines’s recovery and prognosis. This
delay is the period from September 10, when Mr. Gaines presented
with what was seen as a twisted ankle, and September 20, when
Physician Assistant Hester evaluated Mr. Gaines, suspected that
he may have a torn Achilles tendon and ordered the radiological
diagnostic tests that suggested the Achilles injury.
Defendants’ Statement of Material Facts (Docket Item 31-5)
reiterates Plaintiff’s statements in the Complaint and in answer
to interrogatories.1

1

In connection with this motion, the Court has reviewed the
moving papers and exhibits [Docket Item 128], Plaintiff’s
Opposition [Docket Item 131], Defendants’ Reply of December 9,
2016 [Docket Item 133], Plaintiff’s Sur-reply letter of December
15, 2016 [Docket Item 135], and Defendants’ further reply letter
of December 22, 2016 [Docket Item 136], and finally Plaintiff’s
letters of December 27, 2016 [Docket Item 139] and January 2,
2017 [Docket Item 138].
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With this factual background, the Court next evaluates
whether Defendants’ motion should be granted.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) generally provides
that the “court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact” such
that the movant is “entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). A “genuine” dispute of “material” fact
exists where a reasonable jury’s review of the evidence could
result in “a verdict for the non-moving party” or where such
fact might otherwise affect the disposition of the litigation.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Disputes over irrelevant or unnecessary facts, however, fail to
preclude the entry of summary judgment. Id.

Conclusory, self-

serving submissions cannot alone withstand a motion for summary
judgment. Gonzalez v. Sec’y of Dept. of Homeland Sec., 678 F.3d
254, 263 (3d Cir. 2012) (internal citations omitted).
In evaluating a motion for summary judgment, the Court must
view the evidence in the light most favorable to the non-moving
party, and must provide that party the benefit of all reasonable
inferences.

Scott v. Harris, 550 U.S. 372, 378 (2007); Halsey

v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014).

However, any

such inferences “must flow directly from admissible evidence
[,]” because “‘an inference based upon [] speculation or
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conjecture does not create a material factual dispute sufficient
to defeat summary judgment.’”

Halsey, 750 F.3d at 287 (quoting

Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d
Cir. 1990); citing Anderson, 477 U.S. at 255).
IV.

DISCUSSION
The Eighth Amendment proscription against cruel and unusual

punishment requires that prison officials provide inmates with
adequate medical care. See Estelle v. Gamble, 429 U.S. 97, 10304 (1976); Rouse v. Plantier, 183 F.3d 192 (3d Cir. 1999). In
order to prevail on an Eighth Amendment medical-needs claim,
“evidence must show (i) a serious medical need, and (ii) acts or
omissions by prison officials that indicate deliberate
indifference to that need.” Parkell v. Danberg, 833 F.3d 313,
337 (3d Cir. 2016). As the Third Circuit Court of Appeals
recently explained,
[i]n the Eighth Amendment context, “deliberate
indifference” is a subjective standard of liability
consistent with recklessness as that term is defined
in criminal law. A prison official is deliberately
indifferent if the official knows that inmates face a
substantial risk of serious harm and disregards that
risk by failing to take reasonable measures to abate
it. A plaintiff may demonstrate deliberate
indifference by showing that the risk of harm was
longstanding, pervasive, well-documented, or expressly
noted by prison officials in the past such that the
defendants must have known about the risk. But the
plaintiff must show that the officials were aware of
facts from which the inference could be drawn that a
substantial risk of harm exists, and that they also
drew the inference. It is not enough merely to find

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that a reasonable person would have known, or that the
defendant should have known.
Id. at 335 (internal citations omitted). A plaintiff cannot
succeed on a medical-needs claim where he merely disagrees with
the medical treatment provided or where his allegedly inadequate
treatment was “a result of an error in medical judgment.” Id. at
337 (discussing Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.
2004) and Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993)).
Rather, a medical-needs claim is actionable only where the
plaintiff can show that “the prison official (1) knows of a
prisoner’s need for medical treatment but intentionally refuses
to provide it; (2) delays necessary medical treatment based on a
non-medical reason; or (3) prevents a prisoner from receiving
needed or recommended medical treatment.” Id. (citing Rouse, 182
F.3d at 197.)
In this case, the undisputed record before the Court shows
that Defendants’ failure to provide Plaintiff with crutches and
instead to treat his ankle injury at first with Motrin,
bandages, and a brace does not rise to the level of actionable
deliberate indifference. Plaintiff presented to the medical
clinic on September 10 with symptoms of an ankle sprain, and he
described his injury as a twisted ankle for which he received
treatment and follow-up care. There is no indication until
September 20 that his injury was possibly a ruptured Achilles

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tendon, which is the date Physician Assistant Avynne Hester
ordered the ankle x-ray and MRI to rule out Achilles rupture, as
noted above. While Nurse Busnardo and Nurse Green did not
realize what they thought was an ankle sprain was actually a
ruptured Achilles tendon, there is no evidence that their
medical perceptions and treatment were the result of
indifference or refusal to do what was medically necessary for
the condition they saw in the first few days of treatment.
First, Plaintiff has adduced no admissible evidence that
Defendants ignored his medical needs and intentionally refused
to provide treatment. Parkell, 833 F. 3d at 337 (citing Rouse,
182 F.3d at 197.) Plaintiff’s speculation that the Defendants
knew immediately that his injury was to his Achilles and not an
ankle sprain is not supported by any admissible testimony or
document in the record and does not alone create a triable
dispute of fact over whether Defendants recognized and ignored
the extent of his injury. In this case, Plaintiff’s claims, and
Defendants’ responses, are quite similar to those found not
actionable against a nurse in Parkell. There, the plaintiff
claimed that the nurse “never properly examined his injury in
person even though he had a ‘massive infection’ and that she
should have given him medication for pain,” but the Third
Circuit determined that, because the nurse ordered an x-ray that
showed normal results and offered over-the-counter pain
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medication, “a factfinder could not reasonably conclude that
[the nurse] deliberately ignored risks to [the plaintiff’s]
health.” Parkell, 833 F.3d at 337-38. Likewise, here, Plaintiff
claims that he was in “severe pain” and his ankle was swollen,
but it is undisputed that Defendants Busnardo and Green
perceived his injury as a twisted ankle and offered Plaintiff
over-the-counter pain medications, bandages, and a brace;
ordered that Plaintiff refrain from work and recreation;
confirmed a medical order for crutches; and arranged for
Plaintiff to see a doctor. (See Chart Notes [Ex. A to Reynolds
Cert. (September 10, 2011), Ex. C (September 14, 2011), and Ex.
D. (September 16, 2011)].)
Like the nurse in Parkell, who noted that the plaintiff’s
x-ray results came back normal, Nurse Busnardo examined
Plaintiff’s ankle on the day of the accident, conducted a range
of motion test on the joint, and noted “no obvious deformities”
and “no notable swelling” in his medical record. (Ex. A.) Also,
like the other medical professionals in Parkell who subsequently
examined the plaintiff, Nurse Green offered additional treatment
and scheduled Plaintiff for an appointment with a doctor when it
became apparent that Plaintiff’s condition had not improved.
(Ex. C & D.) It would be unreasonable for a jury to conclude,
from these actions, that the Defendants intentionally ignored
Plaintiff’s medical needs. Despite Plaintiff’s disagreement that
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he immediately should have been provided additional treatment in
the form of crutches, there is nothing in the record to suggest
that either of these Defendants ignored Plaintiff’s medical
needs and intentionally refused to provide adequate treatment.
After all, “prison authorities are accorded considerable
latitude in the diagnosis and treatment of prisoners” and a
plaintiff cannot succeed on a medical-needs claim where he
merely disagrees with the medical treatment provided. Parkell,
833 F.3d at 337.
Second, Plaintiff has pointed to nothing in the record,
beyond his own speculation, that Defendants delayed or denied
Plaintiff treatment for non-medical reasons. Parkell, 833 F. 3d
at 337 (citing Rouse, 182 F.3d at 197.) Plaintiff posits that
Defendants decided not to provide him with crutches as a costsaving measure, in order to avoid “acknowledgment and admission
that the injury was serious,” but points to no evidence in the
record supporting his theory. (Plaintiff’s Opposition to Summary
Judgment [Docket Item 131] at 12.) Indeed, Plaintiff’s
speculation that Defendants “covered up” the extent of his
injury in order to save money is contradicted by the actual
medical record, which indicates that Defendants Busnardo and
Green instructed Plaintiff to return for a follow-up if his
symptoms worsened, and scheduled Plaintiff for a doctor’s call
when his physical exam a few days later showed deterioration of
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his ankle’s condition. Indeed, the record is uncontradicted that
as Mr. Gaines’s medical condition persisted, Nurse Busnardo and
Nurse Green intensified their efforts, which was the opposite of
exhibiting deliberate indifference to his needs. “Unsupported
assertions, conclusory allegations, or mere suspicions are
insufficient to overcome a motion for summary judgment.” Betts
v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010);
Sterling Nat’l Mortg. Co. v. Mortg. Corner, Inc., 97 F.3d 39, 44
(3d Cir. 1996) (stating that “[m]ere speculation about the
possibility of the existence of such facts” does not raise
triable issue to defeat motion for summary judgment).
Finally, Plaintiff has not shown that Defendants prevented
Plaintiff from receiving necessary medical care, despite his
conclusory assertion to the contrary. Parkell, 833 F. 3d at 337
(citing Rouse, 182 F.3d at 197.) The record shows that Defendant
Busnardo attended to Plaintiff on the day of his injury and
instructed him to come back to the clinic if his condition did
not improve, that Defendant Green scheduled Plaintiff for a
doctor’s call after her first examination of Plaintiff’s ankle,
just days after his injury, and that shortly thereafter
Plaintiff was examined by Physician Assistant Avynne Hester and
Dr. William Briglia, DO, and was referred to Dr. Gerald Packman,
an orthopedic specialist. (See Chart Notes from 9/14/2011 [Ex.
C]; from 9/16/2011 [Ex. D]; from 9/20/2011 [Ex. E]; and
13

10/3/2011 [Ex. E].) No rational factfinder could determine that
this series of events constitutes preventing Plaintiff from
receiving medical care.2
Accordingly, where the undisputed record shows that
Plaintiff received medical care from Defendants for an ankle
injury, and in the absence of any indication that Defendants
intentionally ignored Plaintiff’s injury, acted for non-medical
reasons, or prevented Plaintiff from receiving necessary medical
care, no rational jury could conclude as a matter of law that
Defendants acted with deliberate indifference with respect to
Plaintiff’s medical needs. Defendants’ renewed motion for
summary judgment will be granted.

2

In addressing this Eighth Amendment claim, Defendants Busnardo
and Green need not demonstrate that they rendered perfect
medical care or even optimal care. An Eighth Amendment claim for
deliberate indifference to serious medical needs requires proof
of more than medical malpractice, which may be defined as a
negligent deviation from the prevailing standard of medical
care; “mere disagreements over medical judgment do not state
Eighth Amendment claims.” White v. Napoleon, 897 F.2d 103, 110
(3d Cir. 1990). Even if a medical provider’s judgment concerning
the proper course of treatment ultimately is shown to be
mistaken, at most what would be proved is medical malpractice,
not an Eighth Amendment violation. See Estelle, 429 U.S. at 105106; White, 897 F.2d at 110. Thus, in the present case, disputes
about whether Nurse Busnardo and Nurse Green should have more
quickly diagnosed and treated Mr. Gaines’s Achilles tendon
rupture are not material in the absence of evidence showing they
were deliberately indifferent to his medical needs. Indeed, such
questions are not material to any claim in the present case,
given that the Court previously granted Defendants’ motion for
summary judgment on Plaintiff’s state law medical malpractice
claim. (See Docket Item 33 at 5-8.)
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V. CONCLUSION
For the reasons stated above, Defendants’ renewed motion
for summary judgment is granted. An accompanying Order will be
entered.

June 5, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

2