Striplin v. Alves et al
Filing
31
DECISION AND ORDER granting 14 Motion for Summary Judgment. This action is dismissed with prejudice. Signed by Hon. Charles J. Siragusa on 11/29/11. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOSEPH STRIPLIN,
Plaintiff,
-vsDOCTOR JOHN W. ALVES, Nurse NORTHRUP,
Nurse BENNETT, Nurse DINARDO
Defendants.
10-CV-06190-CJS
DECISION and
ORDER
INTRODUCTION
Joseph Striplin (“Plaintiff”), a prison inmate in the custody of the New York State
Department of Corrections and Community Supervision (“DOCCS”) has filed a pro se
complaint pursuant to 42 U.S.C. § 1983 alleging that Defendants violated his federal
constitutional rights by denying him appropriate medical care. Now before the Court is
Defendants’ Motion for Summary Judgment. [#14]. For the reasons that follow,
Defendants’ motion is granted and this action is dismissed.
BACKGROUND
At all relevant times Plaintiff was housed at Elmira Correctional Facility (“Elmira”),
where Defendants were employed as medical staff. More specifically, John Alves, M.D.
(“Alves”) was employed as a physician, Jill Northrup, NP (“Northrup”) was employed as
a nurse practitioner, and G. Bennett (“Bennett”) and Rebecca DiNardo (“DiNardo”) were
employed as nurses.
On January 4, 2007, Plaintiff attempted to commit suicide by
1
taking fifty-five Flexeril pills.1 See, Northrup Decl., Ex. A. Plaintiff was found
unresponsive on the floor of his cell, with two lumps on the right side of his forehead,
and scrapes on his elbows, which he apparently sustained by falling to the floor.
Unaware that Plaintiff had taken Flexeril, and suspecting that he had overdosed on
narcotics, medical staff injected him twice in the arm with Narcan, a medication which
reverses the narcotic high and increases consciousness in the patient. Alves Decl. at ¶
7.2 Following the Narcan injections, Plaintiff became more alert and oriented, and was
able to provide his Department Identification Number (“DIN”).
Two days later, on January 6, 2007, Plaintiff told a nurse that he had attempted
to kill himself by taking 55 Flexeril pills. Plaintiff denied any suicidal ideation at that
time. Northrup Decl. Ex. A. The nurse notified a doctor and the facility mental health
staff. There is no indication in the medical record that Plaintiff complained of pain or
paralysis in his arm on January 6th.3
On January 8, 2007, apparently around 6:30 am, while Bennett was on sick-call
rounds, Plaintiff told her that he had tried to kill himself on January 4th by taking 55
Flexeril pills. Northrup Decl., Ex. A. Plaintiff further told Bennett that he was unable to
move his right arm. Id. Bennett recorded Plaintiff’s complaints and made a mental
1
Flexeril is a brand of cyclobenzaprine, a prescription m uscle relaxant. See,
http://www.m ayoclinic.com /health/drug-inform ation/DR600491. It is unclear how Plaintiff obtained the pills.
2
Medical staff drew Plaintiff’s blood for analysis and sent it to the lab, however the lab indicated
that the blood had to be re-drawn, because staff had used the wrong type of tube. However, Northrup
determ ined that the blood test would be invalid at that point, since Plaintiff had already been given Narcan.
See, Northrup Decl., Ex. A. It does not appear that this incident has any bearing on Plaintiff’s claim .
3
In opposition to sum m ary judgm ent, Plaintiff alleges that he did com plain to DiNardo of arm
paralysis on January 6th.
2
health referral, based on the claimed suicide attempt. Id. Later that day, at
approximately 8:00 pm, Plaintiff told DiNardo that he was having “severe arm pain.”
Northrup Decl., Ex. A. DiNardo had Plaintiff taken to the infirmary, where she observed
that he was neither grimacing nor sweating. Id. In addition, Plaintiff denied having any
pain at that time. Id. DiNardo took the radial and brachial pulse in Plaintiff’s right arm.
Plaintiff told DiNardo that his right arm was “dead,” but DiNardo observed that Plaintiff
moved the arm “when no one is looking at him.” Id. DiNardo nevertheless scheduled
Plaintiff for a follow-up with a nurse practitioner or doctor. Id.
On January 11, 2007, Plaintiff complained to Bennett that he was having “terrible
arm pain.” Northrup Decl., Ex. A. It appears that Plaintiff indicated that he was unable
to move his arm or make a muscle or fist, but Bennett recorded that he was “witnessed
moving [his] arm.” Id. Bennett apparently consulted with Northrup, who indicated that
she did not need to see Plaintiff, since there was no “medical documentation of any
physical issue.” Id.
On January 12, 2007, at approximately 5:30 pm, Elmira medical staff were
notified that Plaintiff “fell out.” Northrup Decl., Ex. A.4 Plaintiff was unconscious,
unresponsive, and sweating profusely. Id. Staff attempted to revive Plaintiff with an
ammonia capsule, which prompted him to open his eyes, but he remained “non-verbal.”
Id. Medical staff then had Plaintiff transferred by ambulance to an outside hospital,
Arnot Ogden Medical Center (“Arnot Ogden”). Id. The following day, Arnot Ogen staff
notified the Elmira medical staff that Plaintiff’s right arm was “flaccid” and that he was
4
Plaintiff’s original Com plaint [#2] in this action appears to indicate that he passed out while
returning from the chow hall.
3
awaiting an MRI. There is no indication, though, that the Arnot Ogden staff explained
why Plaintiff had been unconscious or unresponsive. Id. Subsequently, Arnot Ogden
notified staff at Elmira that they had performed MRI and EMG testing on Plaintiff, for
“[right] arm flaccidity and syncopy.” Id.
Plaintiff was subsequently diagnosed and treated as having “severe proximal
brachial plexus injury.”5 Northrup Decl., Ex. A. On February 5, 2007, Plaintiff was
evaluated at St. Joseph’s Hospital, and the evaluation report indicates, in pertinent part,
“There is a very nebulous history in terms of what actually occurred to his right upper
extremity to produce this profound injury. He [Plaintiff] reports that he was in Arnot
Ogden medical Center for two weeks where they had him on Percocet which was
working to relieve his symptoms, however, he now reports that his pain is increasing in
intensity without improvement with percocet.” Id. The same report further stated:
“Patient with profound brachial plexus injury either at the cord or root level. Cannot
imagine a root injury without high impact injury.” Id.
On or about January 28, 2010, Plaintiff commenced this action in the U.S. District
Court for the Southern District of New York, against Alves, Northrup, Bennett, and other
“persons known and unknown who hire them for correctional service.” (Docket No.
5
The Mayo Clinic describes such injury as follows: “A brachial plexus injury is an injury to the
brachial plexus — the network of nerves that sends signals from your spine to your shoulder, arm and
hand. A brachial plexus injury occurs when these nerves are stretched or, in the m ost serious cases, torn.
This happens as result of your shoulder being pressed down forcefully while your head is pushed up and
away from that shoulder. Brachial plexus injuries are com m on in contact sports, but they frequently result
from auto or m otorcycle accidents or falls. Babies som etim es sustain brachial plexus injuries during birth.
Other conditions, such as inflam m ation or tum ors, m ay affect the brachial plexus.”
http://www.m ayoclinic.com /health/brachial-plexus-injury/DS00897
4
[#2]).6 The complaint alleged that the defendants violated Plaintiff’s 8th Amendment
rights, and that his “arm, chest, thigh and leg [were] permanently injured by the
defendants,” who “denied and refused [him] all physical aid and medication or aid to his
injuries for approximately three (3) days.” Id. The complaint indicated that after he took
“50 or 55" flexeril pills, Elmira medical staff “sadistically left him in his cell for three
days,” which resulted in his arm being paralyzed. Plaintiff further alleged that he was
“set upon by a sadistic [unnamed] nurse” while he was unconscious. Id. Plaintiff
indicated that he had passed out due to pain from his arm, and that his injury, which
Arnot Ogden staff diagnosed as “brachial plexus injury,” was caused by the injections of
Narcan with a hypodermic needle, and that Defendants were attempting to cover up the
fact that they had “stabb[ed] a nerve in the arm or neck.” Id.
On August 3, 2010, Plaintiff filed an Amended Complaint [#8], again, naming
Alves, Northrup, and Bennett as defendants, as well as “Jane Doe, nurse.” The
Amended Complaint names Defendants in their individual and official capacities and
seeks money damages. The Amended Complaint reiterates the prior allegations, and
specifically alleges that Plaintiff’s arm paralysis was caused by the injections of Narcan.
The Amended Complaint further contends that Plaintiff was “denied medical treatment”
after he began complaining about his arm, and that it was incorrect to inject him with
Narcan, since he had not taken heroin. The Amended Complaint purports to state
claims under the Due Process and Equal Protection Clauses. However, the Court
liberally construes the pro se pleading to raise the strongest argument that it suggests,
6
The body of the com plaint also indicates that Plaintiff is attem pting to sue “all inm ate m edical
staff.”
5
which is an Eighth Amendment Deliberate Indifference claim.
On October 19, 2010, DOCCS advised the Court’s Pro Se Clerk’s Office that the
name of the John Doe Nurse was Rebecca DiNardo. At that time, pursuant to an earlier
Order of this Court, the Amended Complaint was deemed amended to include DiNardo
as a defendant. See, Order [#9] at p. 2.
On January 21, 2011, Defendants filed the subject motion for summary
judgment [#14].7 In support of the application, Alves, Northrup, and DiNardo have
submitted affidavits, along with Plaintiff’s Ambulatory Health Record covering the
relevant period. Alves indicates, in pertinent part, the following facts: 1) it was medically
appropriate to inject Plaintiff with Narcan; 2) Narcan is injected on the outside of the arm
and “would not cause the brachial plexus injury located in Plaintiff’s armpit area”; 3)
Alves’ involvement with Plaintiff’s medical care was limited to ordering blood work on
January 4, 2007, and to approving a mental health referral; 4) Alves was not aware of
Plaintiff’s arm injury until after January 12, 2007, when Plaintiff was sent to Arnot
Ogden. Alves Aff. [#17]. Northrup indicates that on January 11, 2007, when she
advised Bennett not to treat Plaintiff’s arm, she had no indication that he had an arm
injury, since there was no documentation of such an injury and Plaintiff allegedly was
able to move his arm, and she did not believe that he had “a medical injury.” Northrup
Aff. [#18]. DiNardo’s affidavit indicates that on January 6, 2007, Plaintiff told her that
he had attempted suicide, and she referred him for mental health treatment. DiNardo
Aff. [#28]. Defendants further contend that the official capacity claims against them
7
Defendants provided Plaintiff with the Notice to Pro Se Litigants as required by Local Rule of Civil
Procedure 56.2. (Docket No. [# 16] ).
6
must be dismissed, and that any claim against DiNardo is time-barred, because she
was not identified as a defendant until more than three years after the events at issue,
which occurred in January 2007.
In response to Defendants’ motion, Plaintiff filed an affidavit [#30] in which he
asserts the following facts: 1) after reviving him with Narcan, Defendants left him
unconscious in his cell for three days; 2) he told DiNardo on January 6, 2007 that his
arm was paralyzed, and she advised him to request sick call; 3) the following day, he
requested emergency sick call and was seen by a non-party nurse; 4) on January 8,
2007, he twice complained to nurses about his arm, and was told that he was being
scheduled to see a doctor; 5) on January 11, 2007, he went to the infirmary and told
Bennett that his arm was paralyzed and painful, but after Bennett conferred with
Northrup, she told him that there was nothing wrong with his arm; and 6) on January 12,
2007, he was taken to Arnot Ogden, and subsequently treated for brachial plexus injury.
Pl. Affidavit [#30]. Plaintiff further states that “an expert opinion should be obtained”
from the surgeon who treated him, apparently concerning the cause of his brachial
plexus injury, although, as discussed earlier, the medical notes do not express an
opinion concerning the cause of the injury, except to say that it would involve injury to
the spinal cord or nerve root, and that a nerve root injury would require a “high impact
injury.” Plaintiff further expresses his own opinion that, “It is believed that the Narcan
injections were the cause of my right arm being paralyzed.” Pl. Aff. at p. 3; see also, id.
(“I remember being asked by Dr. Huang if I was stabbed, as if the injury was consistent
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with maybe a needle stabbing.”)8
ANALYSIS
The standard for granting summary judgment is well established. Summary
judgment may not be granted unless “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A party seeking summary judgment
bears the burden of establishing that no genuine issue of material fact exists. See
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
“[T]he movant must make a prima facie showing that the standard for obtaining
summary judgment has been satisfied.” 11 Moore's Federal Practice, § 56.11[1][a]
(Matthew Bender 3d ed.). “In moving for summary judgment against a party who will
bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing
to an absence of evidence to support an essential element of the nonmoving party's
claim.” Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), cert denied,
517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate “specific facts
showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To do this, the
8
Plaintiff does not indicate that Huang told him that brachial plexus could be caused by a
hypoderm ic injection in the arm , and Alves has stated that such an injury would not have been caused by
the Narcan injection.
8
non-moving party must present evidence sufficient to support a jury verdict in its favor.
Anderson, 477 U.S. at 249; see also Fed. R. Civ. P. 56(e) (“When a motion for summary
judgment is made and supported as provided in this rule, and adverse party may not
rest upon the mere allegations or denials of the adverse party's pleading, but the
adverse party's response, by affidavits or as otherwise provided in this rule, must set
forth specific facts showing that there is a genuine issue for trial.”). The underlying facts
contained in affidavits, attached exhibits, and depositions, must be viewed in the light
most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82
S.Ct. 993, 8 L.Ed.2d 176 (1962). Summary judgment is appropriate only where, “after
drawing all reasonable inferences in favor of the party against whom summary judgment
is sought, no reasonable trier of fact could find in favor of the non-moving party .” Leon
v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The parties may only carry their
respective burdens by producing evidentiary proof in admissible form. Fed. R. Civ. P.
56(e). Moreover, since Plaintiff is proceeding pro se, the Court is required to construe
his submissions liberally, “to raise the strongest arguments that they suggest.” Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Official Capacity Claims
Under the Eleventh Amendment, State officials can be sued in their official
capacities for injunctive relief, but not for money damages. See Fulton v. Goord, 591
F.3d 37, 45 (2d Cir.2009) (noting that “ Kentucky v. Graham, 473 U.S. 159, 169, 105
S.Ct. 3099, 87 L.Ed.2d 114 (1985), holds that in a suit against state officials in their
official capacities, monetary relief (unlike prospective injunctive relief) is generally
barred by the Eleventh Amendment,” but that such immunity may be waived or
9
abrogated in a particular case). Since Plaintiff is only suing for money damages, the
official capacity claims must be dismissed.
Claims against DiNardo
The statute of limitations for claims under 42 U.S.C. § 1983 is three years, and
Plaintiff identified DiNardo as a defendant more than three years after the complained-of
events occurred in January 2007. Therefore, any claims against DiNardo do not relate
back. See, Perez v. New York City Police, 234 F.3d 1262, No. 00-0016, 2000 WL
1715248 at *1 (2d Cir. Nov. 13, 2000) (“Perez's failure to name the ‘Doe’ defendants by
their proper names within the applicable statutes of limitations-three years for §§ 1983
and 1985 and one year for § 1986-is fatal to his claims. See Tapia-Ortiz v. Doe, 171
F.3d 150, 151-52 (2d Cir.1999). ‘[E]ven when a suit is brought by a pro se litigant, an
amended complaint adding new defendants [cannot] relate back if the newly-added
defendants were not named originally because the plaintiff did not know their identities.’
Id. at 152 (internal quotation marks omitted)”). Accordingly, DiNardo is entitled to
summary judgment.9
Eighth Amendment Medical Claims
Plaintiff is suing pursuant to 42 U.S.C. § 1983, and the legal principles applicable
to such claims are well-settled:
In order to establish individual liability under § 1983, a plaintiff must show (a) that
the defendant is a “person” acting “under the color of state law,” and (b) that the
defendant caused the plaintiff to be deprived of a federal right. See e.g., Monroe
v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Additionally, “[i]n this
Circuit personal involvement of defendants in alleged constitutional deprivations
9
For the reasons discussed below, DiNardo would also be entitled to sum m ary judgm ent on the
Eighth Am endm ent claim s in any event.
10
is a prerequisite to an award of damages under § 1983.” McKinnon v. Patterson,
568 F.2d 930, 934 (2d Cir.1977).
An individual cannot be held liable for damages under § 1983 “merely
because he held a high position of authority,” but can be held liable if he
was personally involved in the alleged deprivation. See Black v. Coughlin,
76 F.3d 72, 74 (2d Cir. 1996). Personal involvement can be shown by:
evidence that: (1) the defendant participated directly in the alleged
constitutional violation, (2) the defendant, after being informed of the
violation through a report or appeal, failed to remedy the wrong, (3) the
defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or custom,
(4) the defendant was grossly negligent in supervising subordinates who
committed the wrongful acts, or (5) the defendant exhibited deliberate
indifference ... by failing to act on information indicating that
unconstitutional acts were occurring. See Colon v. Coughlin, 58 F.3d 865,
873 (2d Cir. 1995).
Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 122, 127 (2d Cir.
2004).
Plaintiff alleges that Defendants violated his Eighth Amendment rights in
connection with his medical treatment, and the legal standard for such claims is clear:
In order to establish an Eighth Amendment claim arising out of inadequate
medical care, a prisoner must prove deliberate indifference to his serious
medical needs. This standard incorporates both objective and subjective
elements. The objective ‘medical need’ element measures the severity of
the alleged deprivation, while the subjective ‘deliberate indifference’
element ensures that the defendant prison official acted with a sufficiently
culpable state of mind.
Because the Eighth Amendment is not a vehicle for bringing medical
malpractice claims, nor a substitute for state tort law, not every lapse in
prison medical care will rise to the level of a constitutional violation. [T]he
Supreme Court [has] explained that the Eighth Amendment's prohibition
on cruel and unusual punishments encompasses the deliberate failure to
treat a prisoner's serious illness or injury resulting in the infliction of
unnecessary pain and suffering. Because society does not expect that
prisoners will have unqualified access to health care, a prisoner must first
make this threshold showing of serious illness or injury in order to state an
Eighth Amendment claim for denial of medical care. Similarly, a prisoner
must demonstrate more than an inadvertent failure to provide adequate
11
medical care by prison officials to successfully establish Eighth
Amendment liability. An official acts with the requisite deliberate
indifference when that official knows of and disregards an excessive risk
to inmate health or safety, a state of mind equivalent to the familiar
standard of ‘recklessness' as used in criminal law.
Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003) (citations and internal
quotations omitted). Courts have repeatedly held that disagreements over treatment do
not rise to the level of a Constitutional violation. See Chance v. Armstrong, 143 F.3d
698, 703 (2d Cir. 1998) (“It is well-established that mere disagreement over the proper
treatment does not create a constitutional claim.”). Similarly, negligence constituting
medical malpractice, without more, will not establish a constitutional claim. Id. (citation
omitted).
Here, at the outset, there is no indication that Alves was personally involved in
any of the medical decisions about which Plaintiff complains. Accordingly, Alves is
entitled to summary judgment.
Additionally, there is no evidence, beyond Plaintiff’s conclusory allegations, that
the injections of Narcan played any part in his injury. The evidence appears to indicate
Plaintiff’s injury occurred when he fell and not as a result of the injections. Also,
considering the circumstances of the injections, which were in response to an
emergency medical situation caused by Plaintiff’s attempted suicide, the treatment did
not recklessly put his health in danger. To the contrary, Alves’s uncontroverted affidavit
indicates that it was medically appropriate to give Plaintiff Narcan.
The remaining aspect of Plaintiff’s claim concerns the delay between the time
that he began complaining about his arm and the time that he was sent to Arnet Ogden.
However, at most those allegations indicate a negligent failure to diagnose, which is not
12
actionable under the Eighth Amendment. There is no indication that either Northrup or
Bennett was aware that Plaintiff had a brachial plexus injury requiring treatment. To the
contrary, the medical notes indicate that, although Plaintiff was complaining that his arm
was paralyzed, they did not believe him because he was able to move his arm. For
example, DiNardo reported that, although Plaintiff claimed that his right arm was “dead,”
she observed him moving the arm when it appeared that he did not think anyone was
watching him, and Northrup and/or Bennett apparently relied on DiNardo’s note. See,
Northrup Decl., Ex. A, medical note dated January 11, 2007. Consequently, Plaintiff at
most has alleged negligence, which is not actionable under 42 U.S.C. § 1983 as an
Eighth Amendment medical claim.
CONCLUSION
Defendants’ motion [#14] is granted, and this action is dismissed with prejudice.
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this
Order would not be taken in good faith and leave to appeal to the Court of Appeals as a
poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further
requests to proceed on appeal in forma pauperis should be directed on motion to the
United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the
Federal Rules of Appellate Procedure.
So Ordered.
Dated: Rochester, New York
November 29, 2011
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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