Nowinski v. Coniglio et al

Filing 55

DECISION AND ORDER granting 50 Defendants' Motion for Summary Judgment. The Clerk of the Court is directed to enter judgment in favor of Defendants and to close the case. Signed by Hon. Michael A. Telesca on 5/21/18. (Copy of this Decision and Order sent by first class mail to Plaintiff.) (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SPENCER NOWINSKI,
Plaintiff,
-v-

6:14-CV-06559 (MAT)
DECISION AND ORDER

M.D. RAO, R.H.S. ADMINISTRATOR
EILEEN DINISIO, M.D. KOOI, MTHULISI
NYONI, R.N. D. GRAFT, M.D. CARL
KOENIGSMANN, and M.D. DOLAN,
Defendants.

I.

Introduction
Pro se plaintiff Spencer Nowinski(“Plaintiff”), a prisoner

currently incarcerated at the Five Points Correctional Facility
(“Five Points”), commenced the instant action on September 24,
2014, alleging a violation of his Eight Amendment rights pursuant
to 42 U.S.C. § 1983 (“§ 1983”).
is

a

motion

defendants

for

M.D.

summary
Rao

(“Dr.

Currently pending before the Court

judgment
Rao”),

(Docket
R.H.S.

No.

50)

filed

Administrator

by

Eileen

Dinisio (“Administrator Dinisio”), M.D. Kooi (“Dr. Kooi”), Mthulisi
Nyoni (“PT Nyoni”), R.N. D. Graft (“PA Graf”1), M.D. Carl J.
Koenigsmann (“Dr. Koenigsmann”), and M.D. Dolan (“Dr. Dolan”)
(collectively “Defendants”).

For the reasons discussed below, the

1

The record reflects that the individual referred to by Plaintiff as “R.N.
D. Graft” is actually physician’s assistant (“PA”) Deborah Graf. The Court has
accordingly referred to her PA Graf.

Court grants the pending summary judgment motion and orders that
the case be closed.
II.

Factual Background
The following facts are taken from the statement of facts,

declarations, and exhibits submitted by Defendants, as well as the
docket in this matter.

Plaintiff did not submit any papers in

opposition to Defendants’ motion, despite having been specifically
warned of the repercussions of failing to do so. Accordingly, this
Court has accepted Defendants’ Rule 56 Statement of Undisputed
Facts (which was submitted in accordance with the Local Rules of
Civil Procedure) as undisputed “to the extent that [the facts set
forth therein] are supported by admissible evidence and are not
controverted by the record.”

Brooks v. Piecuch, 245 F. Supp. 3d

431, 434 (W.D.N.Y. 2017).
Plaintiff’s complaint alleges that, sometime in 2002, he tore
his anterior cruciate ligament (“ACL”). In February 2002, Plaintiff
was arrested and jailed in the Cattaraugus County Jail, where he
complained about his knee injury.

Over the next nine years of

incarceration, Plaintiff alleges that he was given various forms of
treatment,

including

prescriptions

for

knee

pain

surgery

in

medication.

2003

and

Nevertheless,

multiple
Plaintiff

contends, his knee pain continued to increase over time.
In

2011

and

2012,

Plaintiff

was

housed

at

the

Attica

Correctional Facility (“Attica”). During this time, because of

2

Plaintiff’s ongoing complaints and his history of knee pain, it was
recommended

that

Plaintiff

under

a

total

knee

replacement.

Dr. Rao, who is now retired but was at that time employed by the
New York State Department of Corrections and Community Supervision
(“DOCCS”) and assigned to Attica, reviewed this recommendation,
which was ultimately approved by DOCCS officials in Albany.
On

October

26,

2011,

Plaintiff

replacement of his right knee.

underwent

a

total

knee

Tissues and bone fragments taken

during the surgery indicated that the condition of his right knee
was consistent with arthritis.

Plaintiff stayed in the hospital

until October 31, 2011, whereafter he was returned to Attica.

To

help with post-surgery pain, Plaintiff was prescribed Tylenol with
codeine.
Plaintiff was discharged to his cell in good condition on
November 1, 2011. Dr. Rao saw Plaintiff on November 14, 2011.
Plaintiff indicated he was in pain, so Dr. Rao renewed his pain
medication for an additional five days.

Plaintiff requested

follow-up for his knee surgery, and Dr. Rao informed Plaintiff that
he was waiting for a note from the physician who had performed the
surgery.

Beyond that, Dr. Rao indicated that he was not able to

answer questions about the surgery because he was not an orthopedic
surgeon.

Plaintiff claims to have sent letters to Dr. Rao, but

Dr. Rao does not recall receiving such letters.

3

Dr. Rao noted in

the system that Plaintiff had requested to see a doctor to follow
up on his surgery.
Registered Nurse Eileen Drankhan (“Nurse Drankhan”), who was
employed by DOCCS at Attica, saw Plaintiff on November 28, 2011.
She noted that Plaintiff was ambulating without difficulty and that
he had returned his crutches.

Plaintiff told Nurse Drankhan that

he was able to walk “okay,” but that he was not bending his right
knee much.

Nurse Drankhan encouraged Plaintiff to bend his knee

and gave him 12 packs of ibuprofen.

She also instructed him

regarding simple exercises he could do to increase his knee’s range
of motion and minimize his pain.
Plaintiff was next seen by Attica medical staff on March 20,
2012, after he was involved in an altercation with another inmate.
No complaints about his knee were noted at that time.
On July 1, 2012, Plaintiff sent a letter to Dr. Koenigsmann,
DOCCS

Chief

department

Medical
at

Officer,

Attica.

complaining

Plaintiff’s

about

letter

was

the

medical

referred

to

Administrator Dinisio, who was at time a regional health services
administrator

for

DOCCS.

Administrator

Dinisio

investigated

Plaintiff’s complaint and discovered that Plaintiff had recently
been evaluated by his primary care provider, that he had been able
to ambulate without difficult following his surgery, and that he
had an appointment scheduled for July 30, 2012.

Administrator

Dinisio sent Plaintiff a letter setting forth those facts and

4

encouraging him to discuss his concerns with his primary care
provider.
On July 30, 2012, Plaintiff was seen by

Attica medical staff

and complained that his knee was not bending well and was slightly
swollen.

Plaintiff was given Motrin and was put on callout for a

physician to review.
PA Graf then saw Plaintiff on September 11, 2012.

Plaintiff

told PA Graf that he had not received physical therapy after his
knee surgery, that he was not experiencing relief from nonsteroidal
anti-inflammatory drugs (“NSAIDs”), and that he was unable to
ambulate short distances or climb stairs.

PA Graf noted that

Plaintiff’s right knee had limited flexion and that his gait was
antalgic. She referred Plaintiff to physical therapy and prescribed
him Voltaren, which is an anti-inflammatory medication, for his
pain and swelling.
Dr. Rao reviewed PA Graf’s referral for physical therapy,
which was subsequently approved by DOCCS officials in Albany.

An

initial physical therapy session was scheduled for September 24,
2012.

However, prior to that date, Plaintiff was transferred to

the Auburn Correctional Facility (“Auburn”).
On October 1, 2012, shortly after his transfer to Auburn,
Plaintiff was seen on sick call.

Plaintiff reported that he had

swelling in his right knee and that he was waiting for physical
therapy.

Based on this report, Dr. Kooi, who was at that time the

5

Facility Health Services Director at Auburn, recommended that
Plaintiff

be

scheduled

for

physical

therapy,

and

an

initial

physical therapy appointment was scheduled for October 18, 2012.
PT Nyoni, a licensed physical therapist, saw Plaintiff on
October 18, 2012.

PT Nyoni would eventually see Plaintiff for

physical therapy for his knee 16 times in 2012 and 2013, with
Plaintiff failing to report for his physical therapy appointments
on five occasions.

The goals of this physical therapy were for

Plaintiff to decrease his pain, improve his gait, increase his
range of motion, and increase the strength in his legs. PT Nyoni
employed a variety of techniques in treating Plaintiff, including
the use of moist heat, range of motion exercises, and manipulation
of Plaintiff’s knee.
Dr. Dolan, who was a DOCCS physician assigned to Auburn during
the relevant time period, first saw Plaintiff on November 19, 2012.
Plaintiff complained of right knee pain and a poor range of motion
following his surgery. Dr. Dolan saw Plaintiff again one week
later. Dr. Dolan noted that Plaintiff had started physical therapy
on October 18, 2012, and that he had had four physical therapy
sessions scheduled with two no-shows. Dr. Dolan further noted that
Plaintiff’s right knee had poor strength and a poor range of motion
and that there signs of atrophy in his right leg.

Based on

Plaintiff’s complaints of pain, Dr. Dolan ordered an x-ray to see
whether Plaintiff’s knee appliance might be loose. Dr. Dolan noted

6

that Plaintiff should see him again after the x-ray was performed.
An x-ray of Plaintiff’s knee was taken on November 30, 2012, and
showed that his knee prosthesis was in place without subsidence or
loosening.
Dr. Dolan saw Plaintiff again on March 20, 2013.

Plaintiff

noted that Plaintiff’s physical therapy had been somewhat irregular
since his surgery and that he had a limited range of motion and
pain in his right knee.

Dr. Dolan suspected that there might be

adhesions in Plaintiff’s knee that were affecting his range of
motion.
Plaintiff,

Dr.

Dolan

which

recommended

was

approved

further
by

DOCCS

physical
officials

therapy
in

for

Albany.

Dr. Dolan further noted that it might ultimately be necessary for
an

orthopedic

surgeon

to

manipulate

Plaintiff’s

anesthesia to address possible adhesions.

knee

under

Dr. Dolan ordered

additional x-rays and blood tests of Plaintiff, and prescribed
acetaminophen for his pain.

Dr. Dolan did not refuse to refer

Plaintiff to a specialist, but instead felt that physical therapy
should be tried first, to see if Plaintiff’s range of motion could
be improved.
Three months later, in June 2013, PT Nyoni recommended that
Plaintiff

see

a

physician

because

he

was

showing

minimal

improvement in his range of motion through physical therapy.
Dr. Kooi saw Plaintiff on June 27, 2013.

Dr. Kooi noted that

Plaintiff could walk but occasionally had a limp.

7

Based on PT

Nyoni’s

notes

and

recommendation

and

his

own

evaluation

of

Plaintiff, Dr. Kooi then referred Plaintiff for a consultation with
an orthopedic surgeon, and the referral was approved by DOCCS
officials in Albany.

Dr, Kooi also prescribed Plaintiff Naprosyn

for his pain.
Dr. Kooi saw Plaintiff again on July 12, 2013.

Dr. Kooi

discontinued the Naprosyn and prescribed Neurontin for pain.

He

further advised Plaintiff to be active to help with his numbness
and range of motion.

On August 23, 2013, Dr. Kooi saw Plaintiff

and increased his Neurontin dosage from 300 mg to 600 mg.
Plaintiff was seen by orthopedic surgeon Dr. Eldridge Anderson
(“Dr. Anderson”) on September 10, 2013.

Dr. Anderson indicated

that Plaintiff should continue with physical therapy and that a
consultation with a revision specialist might be appropriate.
Dr. Kooi saw Plaintiff on September 12, 2013.
Dr.

Anderson’s

findings

and

recommendations

He discussed

with

Plaintiff.

Plaintiff indicated that he did not believe further physical
therapy would be helpful.
On January 17, 2014, Plaintiff was seen by orthopedic surgeon
Dr. Mitchell Rubinovich (“Dr. Rubinovich”) to discuss possible
revision surgery.

That same day, Dr. Rubinovich sent a letter to

Dr. Daniel Weinstock (“Dr. Weinstock”), a DOCCS physician at
Auburn, in which he recommended that Plaintiff be provided a cane.
Dr. Rubinovich also indicated that he wanted to further review

8

Plaintiff’s imaging results and to discuss the matter with his
medical partner.

Dr. Rubinovich stated that he would contact

Dr. Weinstock after he spoke with his partner.
Dr. Weinstock called Dr. Rubinovich’s office on February 10,
2014, and was told that Dr. Rubinovich had been away for two weeks,
but would be returning on February 17, 2014, and would call
Dr.

Weinstock

back.

Dr.

Weinstock

subsequently

reported

on

March 3, 2014 that no revision surgery was possible at that time
and that Plaintiff should be considered and evaluated for a cane.
Dr. Kooi saw Plaintiff on April 3, 2014.

Dr. Kooi approved

the recommendation that Plaintiff be given a cane and ordered a
cane for Plaintiff.

Plaintiff received his cane on April 8, 2014.

Dr. Kooi subsequently approved Plaintiff’s permit for a cane on at
least three occasions.
Plaintiff was thereafter transferred to Five Points.
ultimately

had

knee

Additional

physical

revision
therapy

surgery

was

on

November

recommended

by

an

17,

He

2016.

orthopedic

surgeon, but Plaintiff refused to attend. Plaintiff has been given
a handicapped cell with shower access and has a permit to walk with
a cane.
III. Discussion
A.

Legal Standard

Pursuant

to

Rule

56(a)

of

the

Federal

Rules

of

Civil

Procedure, the Court will grant summary judgment if the moving

9

party demonstrates that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law. When considering a motion for summary judgment, all genuinely
disputed facts must be resolved in favor of the party against whom
summary judgment is sought. See Tolan v. Cotton, 134 S.Ct. 1861,
1863 (2014).

If, after considering the evidence in the light most

favorable to the nonmoving party, the court finds that no rational
jury could find in favor of that party, a grant of summary judgment
is appropriate.

See Scott v. Harris, 550 U.S. 372, 380 (2007),

citing Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475
U.S. 574, 586-587 (1986).

A party opposing a motion for summary

judgment “‘must do more than simply show that there is some
metaphysical doubt as to the material facts. . . .

[T]he nonmoving

party must come forward with specific facts showing that there is
a genuine issue for trial.’” Caldarola v. Calabrese, 298 F.3d 156,
160 (2d Cir. 2002) (quoting Matsushita Elec., 475 U.S. at 586-87).
B.

Failure to Exhaust Administrative Remedies

As a threshold matter, Defendants contend that Plaintiff
failed to exhaust his administrative remedies with respect to all
of his claims related to events in 2011, 2012, “early 2013,” and
after August 20, 2013.

The Court agrees.

Pursuant to the Prison Litigation Reform Act (“PLRA”), “[n]o
action shall be brought with respect to prison conditions under
[§ 1983] . . . by a prisoner confined in any jail, prison, or other
10

correctional facility until such administrative remedies as are
available are exhausted.”
a

three-tiered

42 U.S.C. § 1997e(a).

administrative

prisoner grievances.”
(S.D.N.Y. 2009).

review

and

DOCCS “maintains

appeals

system

for

Torres v. Carry, 672 F. Supp. 2d 338, 343

In particular, “[f]irst, an inmate may file an

inmate grievance complaint form or a written grievance, if forms
are not available, with the Inmate Grievance Resolution Committee
(“IGRC”). Second, if the inmate is dissatisfied with the IGRC
decision, he may appeal to the prison superintendent. Finally,
[DOCCS] permits an inmate to appeal the superintendent’s written
decision to the CORC [Central Office Review Committee].”
(internal citations omitted).

Id.

An inmate must exhaust all three

levels of review before he or she can bring a claim under § 1983.
Moreover, “untimely or otherwise procedurally defective attempts to
secure administrative remedies do not satisfy the PLRA's exhaustion
requirement.”

Ruggiero v. Cty. of Orange, 467 F.3d 170, 176

(2d Cir. 2006).
In this case, DOCCS has submitted uncontroverted evidence that
Plaintiff fully exhausted only one grievance related to his medical
care following his knee surgery.
August 20, 2013.

That grievance was filed on

The IGRC investigated and granted Plaintiff’s

grievance to the extent that it agreed his future health care needs
should be tended to in a timely fashion.

Plaintiff appealed to the

superintendent, who agreed with the findings of the IGRC and noted

11

that Plaintiff had an upcoming appointment with an orthopedic
surgeon.

Plaintiff appealed to CORC, and on February 12, 2014,

CORC issued a decision granting Plaintiff’s request in part.

In

particular, CORC found that Plaintiff’s complaints regarding his
medical concerns in 2011, 2012, and “early 2013” were untimely.
CORC further found that, with respect to the timely aspects of
Plaintiff’s grievance, there was no evidence to substantiate any
claims of improper medical care or malfeasance by DOCCS staff.
CORC encouraged Plaintiff to address his medical concerns via sick
call.
CORC’s conclusion that Plaintiff failed to timely grieve his
complaints from 2011, 2012, and early 2013 is well-founded.

Under

DOCCS’ system for inmate grievances, grievances must be filed
“within 21 calendar days of an alleged occurrence.”
Codes R. & Regs. § 701.5.

N.Y. Comp.

In this case, Plaintiff did not file his

grievance until August 20, 2013.

Accordingly, his complaints

related to any events occurring before July 30, 2013 were untimely.
Plaintiff therefore failed to exhaust his administrative remedies
with respect to such complaints.
Plaintiff also failed to exhaust his administrative remedies
as to events occurring after August 20, 2013, the date of the only
grievance he appealed to completion.

Plaintiff never filed a

grievance related to these later events, and under the PLRA, may
not maintain a § 1983 claim based upon them.

12

Moreover, there is no

evidence in the record from which the Court could conclude that
Plaintiff was unable to comply with DOCCS’ grievance procedures.
To the contrary, the fact that Plaintiff filed and appealed to
completion

his

August

20,

2013

grievance

grievance procedures were available to him.

demonstrates

that

Accordingly, to the

extent Plaintiff’s claims are based on events occurring before
July 30, 2013 or after August 20, 2013, Defendants are entitled to
judgment in their favor.
C.

Plaintiff Cannot Show a Violation of His Eight Amendment
Rights

Plaintiff’s claims are based on his Eight Amendment right to
be free from cruel and unusual punishment.

“The Cruel and Unusual

Punishments Clause of the Eighth Amendment imposes a duty upon
prison officials to ensure that inmates receive adequate medical
care.”

Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006).

However, the Second Circuit has made it clear that “not every lapse
in medical care is a constitutional wrong.”

Id.

Instead, to

demonstrate an Eighth Amendment violation, Plaintiff is required to
meet

two

separate

requirements.

“The

first

requirement

is

objective: the alleged deprivation of adequate medical care must be
sufficiently

serious.”

Id.

(internal

quotation

omitted).

Determining whether a deprivation was objectively serious in turn
involves two inquiries: “The first inquiry is whether the prisoner
was actually deprived of adequate medical care. . . .

Second, the

objective test asks whether the inadequacy in medical care is
13

sufficiently serious. This inquiry requires the court to examine
how the offending conduct is inadequate and what harm, if any, the
inadequacy has caused or will likely cause the prisoner.”

Id. at

279-80.
The second requirement to show an Eighth Amendment deprivation
of medical care claim “is subjective: the charged official must act
with a sufficiently culpable state of mind.”
particular,

“[i]n

medical-treatment

emergency

situations,”

violation

must

show

the

that

a

party

cases

not

claiming

a

defendant

indifference to inmate health.”

Id. at 280.

“acted

arising

In
from

constitutional
with

deliberate

Id.

In this case, even taking into account events before July 30,
2013 and after August 20, 2013, it is clear that no rational
factfinder could hold that either of these requirements were met.
Turning to the first requirement, there is simply no evidence that
Plaintiff was deprived of adequate medical care.

To the contrary,

the record shows that Plaintiff was provided with extensive care
for his knee problems, including multiple surgeries, physical
therapy, medication, and accommodations such as a cane and a
handicapped cell.

See Gray v. Kang Lee, No. 9:13-CV-258 GLS/DEP,

2015 WL 1724573, at *3 (N.D.N.Y. Apr. 15, 2015) (prisoner could not
satisfy objective requirement where he was “frequently treated,
prescribed pain medication, tested with an x-ray and MRI, and
referred to an orthopedic specialist”).

14

With respect to the second, subjective requirement, once again
there is no evidence from which a rational factfinder could hold in
Plaintiff’s favor.

It is apparent that Defendants made reasonable

efforts to provide Plaintiff with appropriate medical care.

The

medical staff at both Attica and Auburn took Plaintiff’s knee
complaints seriously, providing him with a wide variety of pain
medications, referring him for physical therapy, and seeking the
advice of outside orthopedic surgeons.

Plaintiff’s disagreement

with his providers’ medical judgment regarding the advisability of
ongoing physical therapy is insufficient to demonstrate deliberate
indifference to his medical needs.

See Green v. Khrisnaswamy, 134

F. App'x 465, 466 (2d Cir. 2005).

Nor is Plaintiff’s belief that

he should have been prescribed stronger pain medication evidence of
a culpable state mind by Defendants. “While prisoners have a right
to medical care, they do not have a right to chose a specific type
of treatment. Differences in opinion by a doctor and a prisoner
over the appropriate medication to be prescribed is a disagreement
over a treatment plan and does not implicate the Eighth Amendment.”
Veloz v. New York, 339 F. Supp. 2d 505, 525 (S.D.N.Y. 2004)
(internal citations omitted).
Based on the record, Plaintiff is unable to “demonstrate that
any of the Defendants was aware of but consciously disregarded a
substantial risk to his health.”
239 (2d Cir. 2010).

Day v. Lantz, 360 F. App’x 237,

To the contrary, the record in this case shows

15

that

Plaintiff’s

providers

Plaintiff’s medical concerns.

actively

attempted

to

address

As such, summary judgment in favor

of Defendants as to all of Plaintiff’s claims is warranted.

IV. Conclusion
For the reasons set forth above, the Court grants Defendants’
motion for summary judgment (Docket No. 50).

The Court hereby

certifies, pursuant to 28 U.S.C. § 1915(a)(3), 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.

See Coppedge v.

United States, 369 U.S. 438 (1962). The Clerk of the Court is
instructed to enter judgment in favor of Defendants and to close
the case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

May 21, 2018
Rochester, New York.

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